Farmer sues magistrate for half a million

LEKOPANYE MOOKETSI
Correspondent | Monday June 21, 2010 00:00

In his court papers, Ookame Lekaukau claims that the magistrate ordered that he should be locked up last year because his lawyer failed to turn up in court. 

In December last year, Lekaukau was appearing for mention before Sibanda on stock theft charges at the magistrates court in Kang. 

But his Gaborone-based lawyer did not turn up due to ill health. He said the magistrate ordered that his bail should be cancelled.

In the court papers, Lekaukau's lawyers contend that the magistrate's decision was malicious.  They further submit that this decision was driven by an improper motive so that the magistrate could punish Lekaukau for his lawyer's absence.

Lekaukau said he suffered P250,000 in damages as a result of the unlawful remand and detention.  He is also demanding P175,000 for his 15 cattle that died due to lack of water when he was in detention, in addition to the 20 that went astray.

The matter was scheduled for mention at the Lobatse High Court today. 

A Gaborone law firm, Masire, Mthimkhulu Attorneys, which represents Lekaukau, wrote to the clerk of the Tsabong Magistrates Court on December 15, a day prior to the mention date stating that their attorney who was assigned the case would not be able to attend due to sickness. He was unable to drive from Gaborone to Kang.

The lawyers said they also phoned the court officials. The lawyers wrote another letter on December 16. This time they were expressing concern that the magistrate had revoked the bail of their client.  The lawyers said one of the reasons why the bail was cancelled was that the defence has a tendency of not attending court using false excuses.

The magistrate said he would commit Lekaukau to prison so that his 'attorneys come running to court'.

The lawyers said the magistrate further ruled that they have not submitted a sick leave report to the court. 

'We wish to point out that there is nowhere in the Criminal Procedure and Evidence Act where a court is empowered to revoke an accused person's bail due to the non attendance of an attorney.

'We firmly believe that it was unwarranted for the Honourable Court to have cancelled our client's bail. The magistrate's court is a creature of statute and His Worship must act within the confines of the statute, in this case the Criminal Procedure and Evidence Act. 

'We therefore implore His Worship to revisit his action and reverse the decision to remand our client forthwith.'Note that the revocation of the bail appears to be malicious and therefore outrightly illegal. It further amounts to abuse of office.

'We reserve our client's rights to take appropriate legal action for amongst others to claim damages for wrongful detention and malicious denial of liberty as a result of abuse of office,' the defence lawyers argued.

On December 21, the lawyers wrote to the Registrar of the High Court, protesting that their client was still languishing in jail. 

'It is noteworthy to point out that we are extremely concerned about the magistrate's conduct of the case.  In fact the decision taken by the magistrate has resulted in denial of liberty of our client.

'Our client's liberty has been taken away on whimsical grounds.  He had done nothing that warranted his bail to be revoked and his liberty to be taken away,' they protested.

'In spite of all efforts we made, the Honourable Magistrate still maliciously and in bad faith proceeded to cancel our client's bail and committed him to prison, so that he can punish him for our non-attendance and indirectly compel us to attend to court.

'The actions of the magistrate are unjustifiable and outrightly illegal. They are in fact an affront on our democracy and a disgrace to the judiciary.'

They further pointed out that the people in Kgalagadi District and the country as a whole will definitely lose trust in the judicial system as a result of the way the courts trample on their rights and liberties with impunity.

'We therefore once again call upon your office and the High Court to intervene in its supervisory powers and save the situation before it gets out of hand. 

'Our client has now been in prison for six days for no apparent reason and we believe the Registrar or the Chief Justice should act swiftly to address the situation,' the lawyers pleaded in their correspondence with the High Court. 

'Our client firmly believes that the actions of the magistrate were malicious and in bad faith and further amounted to an abuse of office,' argued the lawyers.

The Attorney General, representing the magistrate, has indicated her intention to defend the matter.