A former police officer, Phodiso Balekanye has escaped criminal prosecution after he was indicted on charges relating to recruiting and hiring his family members.
Balekanye won his case at the Court of Appeal (CoA) last week after facing prosecution following his investigation by the Directorate on Corruption and Economic Crime (DCEC) and charged with two counts of failure to declare a conflict of interest.
This was after it was found that he was part of a team that interviewed and recruited his biological son and niece for positions of police constable in 2005.
Balekanye’s escape cemented by the CoA full bench came after he failed to permanently stay his prosecution at the High Court after he had approached the court citing he would not have a fair trial due to lapse of time since he was investigated by DCEC and cautioned.
President of the CoA, Ian Kirby when freeing the accused said the case was a simple criminal case in which a substantial part of evidence had been gathered in 2009 and it took about a year to close the investigations after 2013.
“In the absence of any explained delay, the accused ought to have been taken to court without delay after he was formally warned and cautioned after the investigations were concluded,” Kirby said.
Justice Kirby explained that there were no explanations as to why the statements that were taken in 2013-2014 were not taken in 2009 or thereabouts. He pointed out that the inordinate delay of around four years from 2009 to 2013 was unexplainable and that most of the delay after 2014 up to 2017 was also unexplainable.
“The long delay is unexplained except on the tardiness of the prosecution. The lack of seriousness by prosecution in investigating the offences, bringing the appellant to trial, fighting the application for permanent stay of proceedings at the High Court and participating in the hearing of this appeal can rightly be described as shocking,” Kirby said.
Kirby further said though the inherent prejudice that the delay has caused the accused was not contestable, what was being contested was that he has suffered trial prejudice.
Kirby also explained the appellant had contested that the three witnesses who died would have been of value to his presentation of his defence.
Meanwhile, at the heart of the matter was that in 2005, the
According to the court documents, amongst the applicants who were interviewed were the appellant’s biological son and a niece. They succeeded, and were recruited for the positions.
Then in 2009 the appellant was interviewed by the DCEC about his involvement in the interviews and his relationship with the special constable applicants. At the time he was being investigated for a possible criminal charge of failing to disclose to the panel his relationship to the two applicants.
Having received the appellant’s response during a telephonic interview, the DCEC officer warned and cautioned the appellant for offence of failing to declare his conflict on interest. Equally, witness statements were also recorded from a number of potential witnesses in the same year.
Further, the court documents revealed that the appellant thereafter heard nothing on the progress of the investigation until January 23, 2014 when officers from the DCEC approached him for another interview in respect of the same matter.
Accordingly, he was again warned and cautioned for committing offences for which he was being investigated. By that time the appellant was in retirement having left the public service in March 2012.
After the interview, the appellant said he did not hear from the authorities until September 2017 when he was indicted on two counts of the offence of failure to declare a conflict of interest contrary to the provisions of the Corruption and Economic Crime Act,
He then took the matter to the High Court contending that there was an unreasonable delay in bringing him to trial and that as a result of such a delay, he could not be accorded a fair trial.
He launched an application for permanent stay of his prosecution arguing that such delay would be a breach of his constitutional right to a fair trial within a reasonable time.
He lost the application, forcing him to approach the CoA and the case was listened to by a full bench of Justices Kirby, Isaac Lesetedi, Monametsi Gaongalelwe, Zibani Makhwade, and Modiri Letsididi.