How Mhlauli walked

TSHIRELETSO MOTLOGELWA
Staff Writer | Friday February 1, 2008 00:00

State Counsel, Boyce F. Rampete, a dark-brown man with a frail looking frame, a small face half lost behind big shades, his large robe swirling in a cloud behind him, walks up the stairs to Court Number 11. He nervously puffs on a cigarette. At the door, he turns the handle once. Nothing. Again. Nothing. He looks around exasperatedly. The time is just about 9:30 am.

'The case is down at Court Number 7,' says a cleaner. He turns and smiles. A toothless grin. He dismounts the stairs. He takes another puff, lets the smoke permeate his lungs, and then lets out a cloud through his nose. He makes for the other block on the eastern side of the High Court complex. But this day is only partly about Rampete. He will play some part in today's proceedings but the day is really about Elvidge Mhlauli, the former permanent secretary in the Ministry of Local Government, Lands and Housing who seeks his temporary freedom today.

Mhlauli dismounts the white Department of Prisons vehicle, almost gingerly. He looks around at the car park as if disorientated. The prison officers walk on both sides of him. Family members meet him, among them his son, Tembile; a bald headed man of average height, and a number of elderly men and women.

Mhlauli walks into the court building into Court 7. The Court has two entrances on the western side; a door at the bottom where lawyers, witnesses, accused and everyone else to do with the court proceedings directly enter at the lower door. The public enters through the top door. Mhlauli disappears into the bottom door. Inside the courtroom it looks as stoic as they come; wood paneling, high roof, demarcated sections, thick tables all elevated according to level of importance such that the judge sits at the highest point in the room. By height, the judge is followed by the court reporter, translator, the bench clerk and all the other people who serve auxiliary roles in the case. The bench clerk is a slim lady with short hair. She is in a striped two-piece suit. There is a quiet confidence about her. Next to her is the reporter whose eyes during the court proceedings remain fixed on something under the table, almost on her lap.

At the top left of the court is a heavy door at which a policeman stands. He scans the expanse of the court with a non-committal consideration. 

At the door into the public gallery stands a security man. He has a thick frame, not in the nightclub bouncer-overly 'muscley' way, but rather he has thick arms, traversed by thick veins that show through the skin. His shoes are shiny.

Mhlauli sits on the right hand side just under the public gallery. To his right are the two prison wardens.

Before him sits the state counsel. To the state counsel's left sits the man who, perhaps after the judge, is the most important to Mhlauli's fate today, his legal representative, Kgalalelo Monthe. Monthe, thick-neck, round-face with a ready smile, likes to speak with emphasis. Before him sit thick files. To his left is his fellow legal practitioner, Reuben Lekorwe, a slimmer and taller-looking man.

He sits back, looking at the laptop before him. Every now and then the two men converse in low tones. Monthe walks up to Mhlauli, who leans to his ear. Monthe nods and walks back to his seat.

Deathly silence descends. Every sound echoes. And then suddenly the police officer rises up, makes a thumbs up sign to the lawyers. Both nod. The time is now 10:30. The officer disappears behind the thick door. He shuts it with a thick thud. There is a moment of silence.

One thud to the door. Everyone rises. Another thud. And then another one. Then the door opens to reveal Justice Key Dingake. He walks fast to his chair. He bows and everyone bows. He sits down. He looks around: at Mhlauli, at the legal teams, and then at the papers before him as the Bench Clerk rises and announces the case. He wears thin-rimmed glasses, placed more on his nose than the bridge such that one can see his eyes over the top of the glasses. He is clean-shaven except for a thin moustache. He wears an expressionless but not unfriendly face.

Monthe rises. 'I have not been introduced to the man on your left,' quips Dingake. 'Oh, your Lordship, the man on my left is Reuben Lekorwe. He will be assisting me in this matter,' says Monthe.

'Ok. That is understood. You may proceed,' says Dingake. Monthe gains momentum. He starts explaining why the application for bail had to be urgent. He indicates he would have preferred to have brought the application much earlier but given that the conviction was done some time late last year, by the time he started his own process, the long holiday season was on. However, he shows how he attempted to get court records from the previous case which took time because of delays by the court concerned.

'It is further respectfully submitted that in so far as an application for bail is concerned with the liberty of the subject, it must be heard within the shortest possible time and that even though no time is prescribed within which a judge must determine such application placed before him, such application must nevertheless be treated with urgency'.

Dingake stares at Monthe, non-committal. He continues to take notes.

'Yes'

'Chinengo J. in Binikwa versus The State at page 589 has this to say regarding a matter brought on urgency for bail application: 'A magistrate is enjoined by the Criminal Procedure and the Evidence Act to determine a bail application within five days of the date of which the application was made to him. Although it is not prescribed therein, a judge must determine an application for bail placed before him, section 107 provides a good guide that such application must be treated with urgency'

' I am not a Magistrate' quips Dingake.
'They refer to the magistrate but it is a good guide'

'I am struggling to be persuaded by that argument. At plain reading, I'm not a magistrate. How does it become a good guide when it refers to a Magistrate?

'It's a tool, a useful guide...' says Monthe, retreating a bit.
'...to a Magistrate,' adds Dingake.

Monthe abandons his argument and goes forward. He continues to argue that in many cases, courts had moved ahead with attending to a bail application even though there were no records.

Monthe continues to argue that there are other cases where the applicant was convicted but the judge went ahead with urgency and attended to the matter.

He indicates that the major guiding principle when granting bail pending appeal are: the question of whether there is likelihood of success on appeal, among others.

He goes on to show the grounds of appeal. In his notice of grounds of appeal filed by his attorney, Monthe says he is appealing against both his conviction and the sentence. He argues that the magistrate erred by not taking into consideration the fact that he is a first offender, adding that in Botswana courts first offenders are given reduced sentences.

Even on count three, knowingly giving false information to a commissioner of oaths, Monthe contends that the magistrate, Lot Moroka misdirected himself in making the finding that the document styled 'confirmatory affidavit' and signed by the appellant was in fact an affidavit. He contends that the magistrate reached this position without making a finding as to whether or not Mhlauli did take an oath or swore to an oath before signing such document.

'Did it have all the characteristics of an affidavit?' inquires Dingake. 'But it was up to the court to establish that. Was it a fact or not. We believe that the court ought to have established that,' says Monthe.

'Are we not engaging in excessive legalism here?' wonders Dingake. 'If we engage in legal sophistry, aren't we facing the danger of losing the confidence of the public'? Mothe contends that the justice system has to dispense justice instead of concentrating on the public mood.

'I would argue that this presents reasonable prospects of success for this appeal application, my Lord,' he says in conclusion. Dingake nods, not in agreement but in understanding. The turn of the government counsel comes. Rampete rises, looks at his notepad and rests his knuckles on the table.

'We agree that the application of this matter is urgent your lordship. We further agree that the liberty of a subject is of paramount importance,' starts Rampete. He however urges a more careful look at whether the appeal had any prospects of success. He says he never had time to peruse the records of the case, 'in order to know whether there are any prospects of success'.

'The availability of court proceedings would also help the respondents to know whether there are any prospects of success. It was Mantswe who was prosecutor and I am only taking it at this stage. Therefore I would need time to consider the evidence that was submitted. Rampete urges the court to make an order to the Village Magistrate Court to deliver the court records. 

'Your learned friend says the sentence was too excessive,' says Dingake. 'He says the applicant got a maximum sentence although he was a first offender. You surely must have some input in this matter'.

Rampete pauses. 'Frankly, I agree with my learned friend's position that the sentence was too severe, given that the applicant was a first offender. A first offender must be treated with leniency and given a short sentence so as to not have him or her mix with hardened criminals. That is our contention my Lord'.

'Your contention is that there are prospects of success on the question of sentence. On appeal?' asks Dingake sternly.

Dingake says the court can and will go ahead to consider the application without the records contrary to what Rampete had argued. The court breaks for lunch. It comes back for more deliberations and then Dingake asks for a break again while he goes to consider his position. At around 6pm Mhlauli rises to hear Dingake's judgement.

'The applicant is granted bail on these conditions. The applicant shall provide surety to bind and submit an amount of P1,500 to the registrar. The applicant surrenders his passport and traveling documents. And finally, that he reports to the Gaborone Central Police Station every Monday, between 7:30am and 4:30 pm'.

It is quiet, except for some shuffling of feet in the public gallery. Monthe nods slightly.  Mhlauli removes his glasses and slowly wipes them. Monthe argues that Mhlauli often has to travel to South Africa for medical attention asking what he would do in that situation.

Dingake asks Monthe to consult with 'his learned friend' Rampete.Monthe whispers into Rampete's ear. It is agreed that Mhlauli be allowed to cross the border if he satisfies the court of the importance of his travel.

So 30 minutes later, as the sun sets on Lobatse's western hills Mhlauli sits on a couch in the High Court's reception area, legs crossed, arms spread talking to a number of elderly men. His son sits on the small table before him, saying softly, 'Its ok pops,' whenever Mhlauli seems increasingly uncomfortable with the photographer snapping at him. Outside, family members impatiently stand by his son's Discovery 3 V6 station wagon ready to whisk him away. That is how Mhlauli walked.