Halt Kgafela proce

GREG KELEBONYE
Staff Writer | Friday November 5, 2010 00:00

 

Dow told the Village Chief Magistrate Barnabas Nyamadzabo yesterday that they have submitted appeal notes to the High Court and that it would be both in the interest of justice and better utilisation of the court system to have the trial against her clients stayed, as otherwise, there will be 'two parallel cases'. 

In the appeal, Dow notes that Nyamadzabo acted ultra vires by determining issues of constitutional interpretation, which should be a forte of the High Court.

The issues in point are whether 'go kgwathisa' (to flog) constitute a crime and therefore not part of Setswana culture and inherently not part of Sekgatla culture; whether 'go kgwathisa' (to flog), is an offence when carried out in terms of customary law - that is whether the Kgosikgolo has the right to enforce corporal punishment in his jurisdiction and the nature and extent of powers of Kgosikgolo or kgosi and whether the kgosikgolo or kgosi are protected under the law for crimes they allegedly committed in the course of their duty.

It has always been the defence's case that the Kgosi acted within the parameters of the customary law and that Bakgatla ba Kgafela should be free to practise their culture in accordance with the Constitution of Botswana without hindrance or spectre of being criminally liable.  In her notes, Dow also contends that Nyamadzabo erred in his finding that the application by her clients for referral of the case to the High Court for determination of the issues in point was 'frivolous and vexatious'.

In dismissing the application Nyamadzabo said that there was no need for the case to be referred to the High Court as the defence's questions could be answered by existing statutes, which are clear on the legality of corporal punishment.

He said then that the defence was failing to understand that the Directorate of Public Prosecutions (DPP) was not arguing whether customary law is bad or that corporal punishment is unlawful, but argued rather that the manner in which the punishment was applied is contentious.  Punishment, he said, is lawful if preceded by a process of fact-finding or trial.

Furthermore, the Constitution provides that every person should be given the right to be heard which is a core principle recognised internationally. Similarly he said the powers of the Kgosikgolo or kgosi do not require the High Court, as they are clearly defined in the Bogosi Act and other relevant statutes.

He added that as a creature of statute, no one should go beyond his or her powers 'not even me with so much power vested in me'. Referral would only waste the courts time, had said before dismissing the case.

In the appeal Dow will also argue that Nyamadzabo erred by not delivering judgement on the issue of immunity, and instead remanding Kgosikgolo Kgafela, his brother Mmusi and Deputy Chief Bana Sekai.  It is the defence's argument that the 11 other tribesmen carried out the floggings with the sanction of the tribal leadership.  Dow will also seek to make additional grounds in the appeal.

However, the prosecution, led by Kgosietsile Ngakaagae opposed the application.  Ngakaagae argued that the defence had not set out the grounds for a stay of proceedings.

'The brevity with which our learned friend addresses the issue seems to suggest that the mere mention of appeal is reason enough for a stay of proceedings.

He  argued that it was necessary to consider if it was appropriate, both legally and logically, to stay the proceedings.  The defence, he said, failed to cite any provision that suggests that when an exception has been taken and overruled proceedings can be stayed  (in this case the exception would be issues raised as defense by Kgafela, Mmusi and Sekai).

Ngkaagae argued that Dow's application for a stay of proceedings should be grounded either on statute or on the common law, and that no reference has been made to such.

'We cannot in all fairness agree to a stay of proceedings as that will not be founded on any law,' he said.  Furthermore he argued that a stay of proceedings 'with respect to this case or any other case puts the trial court at the mercy of the upper court's processes and functionaries.'

'If the High Court does not hear or determine this by the end of next year, that would mean proceedings here will be paralysed until then. So this honourable court would have to sit and hope that this matter is heard expeditiously by the High Court.

The tragedy about this is that not only is this court at the mercy of the upper court, but also in the fact that we can never know for sure at which stage our learned friend's clients will be ready to plead and continue with the trial,' he said.

He argued that the application presupposes that if the High Court dismisses the appeal, then the magistrate's court would have to continue with the stay of proceedings as the defence takes the matter to the Court of Appeal.

He argued that a timetable should be set for the resolution of the current trial with the hope that the defence's appeal would be entertained expeditiously by the upper court. He added that in asking for a stay of proceedings, the defence was hoping that the upper court would hear and resolve the matter soon.

'If by the time the appeal is heard by the High Court this matter is about to be heard by this court, and the dates are so proximate that it makes sense to consider awaiting the High Court decision, then that decision can be made at the appropriate time, fully informed by the circumstances,' he said.

Ngakaagae argued that it was theoretically and practically possible for an appellant to withdraw an appeal at the last minute, ' when he or she has held this court at ransom for months on end'.

' Is that a gamble we are willing to take?' he asked.  Ngakaagae also argued that the request for a stay of proceedings presupposes that all a favourable verdict will be terminal to the proceedings in the lower court, even with regard to the non-royal accused persons.

In response to the prosecution, Dow said that Section 138 of the Criminal Procedure and Evidence Act, as read with Section 133, provides for the matter to be referred to the High Court.

Magistrate Nyamadzabo has set judgement for November 10.