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Precedent on Kgosi’s arrest warrant overlooked

The courts may be called upon to scrutinise the warrant of arrest of Isaac Kgosi and the More v The Attorney General could be a source of headache.

This is because one Magisterial District cannot issue a warrant of arrest over a matter arising in another magisterial jurisdiction.

Newspapers were awash with reports that Kgosi’s warrant of arrest was issued in Mahalapye within the Central Magisterial District. Kgosi is a resident of Gaborone.

Allegations of tax evasion by Kgosi would be matters which would have ordinarily taken place either within Gaborone. So far, there is nothing to show which specific acts of tax evasion could have taken place in Mahalapye where the warrant was issued. It has been reported that when the warrant was applied for, Kgosi was not given notice nor was he present when the magistrate issued and granted the warrant of the arrest.

This article undertakes research as to the circumstances under which a warrant of arrest ought to be obtained in terms of the Criminal and Proceedings Act (CP&A).

The CP&A provides that no person arrested without a warrant shall be detained in custody for a period longer than 48 hours unless a warrant has been obtained for his further detention upon a charge of an offence. 

It further provides simply that “unless such person is released by reason that no charge is to be brought against him, he shall, as soon as possible, be brought before a magistrate’s court having jurisdiction upon a charge of an offence”.  It has also been reported that the Directorate of Intelligence Services (DIS), the police and the Directorate on Corruption and Economic Crime (DCEC) have all refused to give a copy of the warrant of arrest to Kgosi and his lawyers except to show him the warrant upon his arrest, which he could not immediately comprehend nor recall what was contained in it.

This writer sought to establish from DIS, the Police and DCEC the basis of the warrant of arrest and its scope with no success. In the case of More v The Attorney General, the then Judge, Justice John Mosojane held primarily that a magistrate’s jurisdiction is limited within the area of the magisterial district to which he or she has been assigned; and that detention  arising from a warrant so obtained was irregular and unlawful.

Furthermore, the warrants were invalid inasmuch as they were issued without bringing the applicant before court and no charge was communicated to or preferred against him. 

It would be safe to say that a warrant of search obtained outside of the territorial jurisdiction of the court issuing it, then such a warrant could be set aside on proper grounds.

Mosojane said, “The words ‘be brought before a court’ are not just empty words. An arrested person is required to be brought before a court not merely to accomplish some empty formality, so that whether he is present or not it makes no real difference and the business of his detention can be carried on to the end as if he has no say in it... It seems obvious to me that an arrested

person is brought to court to afford him the opportunity to challenge his arrest or apply for his release on bail or unconditionally if he so elects. It is for the exercise of this right - the right to tell his side of the story - that the Legislature saw it fit to have him brought before a court of law. Where he is not before the court, it is hardly possible for the judicial officer to determine the merits of the detention being sought...

Any person’s liberty is sacrosanct and constitutionally protected, and should be treated with a lot more respect than was shown here”.

As regards the question whether or not one magisterial district could issue a warrant of arrest over a matter arising in another magisterial jurisdiction, Mosojane expressed himself thus, “The Magistrates’ Courts Act provides by Section 9 for magisterial districts to coincide with the administrative districts as provided for under the Administrative Districts Act (Cap. 03:02). As the position stands, presently Kasane and Kazungula fall under the North West magisterial district whereas Francistown is in the Francistown magisterial district.

In terms of section 10 of the Magistrates’ Courts Act (Cap. 04:04) the Chief Justice may assign magistrates to courts in any magisterial districts and may transfer them between courts in any magisterial districts or from courts in one magisterial district to another.

In the absence of any other provision to the contrary, and none has been referred to me, it seems to me logical that a magistrate’s jurisdiction is limited within the area of the magisterial district to which he has been assigned.

Unless he is a chief or senior magistrate assigned to supervise more than one magisterial district he has no concurrent jurisdiction over more than one district. Section 36 of Cap. 04:04 cited above provides for the arrested person to be brought before “a magistrate’s court having jurisdiction”.

That must refer, in my view, to territorial jurisdiction in any matter. It follows therefore that the Francistown-based magistrates who issued the warrants on January 28 and February 11, 1999 had no jurisdiction to entertain a matter arising outside their magisterial district.

The state properly concedes the nullity of the warrant issued on February 11, 1999, but has left the decision on the other warrant to the court, Mr. Sebotho arguing that the point is a moot one for the simple reason that the C magistrate although temporarily sitting outside his area of jurisdiction had authority to issue the warrant of January 28”.

It was on this basis that the warrants of arrests in the case of More were set aside as a nullity. It seems highly likely that Kgosi may consider this option and move the court to set aside the warrant and possibly seek damages after.

On the basis of More case and following precedence, this position may be reinforced once again.

* Motajo Moladelo is a Gaborone-based legal practitioner writing under a pen name

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