Mhlauli appeals

GIDEON NKALA
Staff Writer | Tuesday January 15, 2008 00:00

Magistrate Moroka convicted Mhlauli on two counts of abuse of office and that he knowingly made a false statement in an affidavit. On the count of abuse of office Mhlauli was slapped with a maximum sentence of two years imprisonment. Mhlauli also received the maximum seven years sentence for the offence of making a false statement.
When he delivered the sentence, Magistrate Moroka advised Mhlauli that he had 14 days to appeal the sentence.

 
In his notice of grounds of appeal filed by his attorney, Kgalalelo Monthe of Monthe Marumo attorneys, Mhlauli appeals against both his conviction and the sentence.
He said the sentence meted out induces a sense of shock and that it ought to be reviewed and set aside.

Mhlauli argues that the Magistrate erred by not taking into consideration the fact that he is a first offender. He contends that the practice in Botswana courts is that first offenders are kept out of prison and or alternatively, to suspend half or the greater portion of such sentence.

'The learned Chief Magistrate erred and misdirected himself in failing to give due weight and or consideration to the personal circumstances of the appellant including his chronic ill health and thereby failed to suspend half or a greater part of the sentence'.
Mhlauli maintains that the magistrate had erred even when he dealt with the individual counts. On the count of abuse of office he argues that the magistrate had erred and misdirected himself in finding him guilty,'in so doing ignoring totally,the evidence of Victor Rantshabeng, then director of lands, which evidence tendered to favour the appellant, Mhlauli'.

'The learned Chief Magistrate erred and misdirected himself in finding the appellant guilty of abuse of office, in allocating to Eddie Norman, land east of Game, when appellant, and or Victor Rantshabeng, gave an explanation as to why Kadimo Oremeng could not be allocated such land, as well as land at Block 5 under KOVK (PTY) Ltd.

Further, Mhlauli maintains that the trial magistrate had erred in accepting as correct the evidence of Milidzani Majingo, then an officer at the department of lands, to the effect that Kadimo Oremeng was better than that of Eddie Norman when Oremeng's application was never exhibited in court to be subjected to an objective professional assessment. Mhlauli also takes issue with the magistrate's finding that Mhlauli was guilty  of the offence of abuse of office without making a finding as to whether or not the explanation given in court by appellant was false or reasonably true.

Even on count three, knowingly giving false information to a commissioner of oaths, Mhlauli contends that the magistrate 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.

In his judgement, Magistrate Moroka said the defence had admitted in their admissions, among other things, evidence of Godfrey Ntlhomiwa, Master and Registrar of the High Court who stated that he had received among other things, a confirmatory affidavit of Mhlauli.

By admitting such evidence, Magistrate Moroka had reasoned that the defence accepted the document as an affidavit. Mhlauli challenges the view held by the magistrate and contends that it is a misdirection and he prays that the High Court should set it aside.Whilst waiting for their appeal to be heard, Mhlauli's legal team is hard at work putting together a bail application pending appeal.

'We do not know when the appeal will be heard but whilst we are waiting for the High Court to set a date for the appeal we are applying for bail,' said attorney Monthe.