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Judge dismisses State postponement plea

MPHO MOKWAPE
Kgosi PIC: KENNEDY RAMOKONE
Gaborone High Court Judge, Michael Leburu has refused to grant the State’s request to postpone former spy chief, Isaac Kgosi’s review application.

Last week, the Directorate of Public Prosecutions (DPP) appeared before Court, seeking leave to have the application postponed on reasons that it needed to look for new legal representation for the State.

The State’s grounds were that it had withdrawn or revoked the mandate of its attorney after an assessment of the competency of the attorney engaged. 

The State had reportedly engaged a private attorney for the matter, but revoked his services a day before the matter went to Court.

However, Leburu did not buy the State’s story as he declined the request saying the reasons given to justify a postponement were unattractive.

He explained that pleadings in the matter had been closed and that comprehensive heads of argument had been filed of record therefore the matter was ripe for argument.

“Any further postponement will be opposable as the matter is of public interest and for that reason it is in the interest of the public that matters should be disposed of within a reasonable time,” he said.

The Judge said that an application for postponement was granted not as a right, but an indulgence conferred upon a party on the basis of the Court exercising its discretion.

Leburu pointed out that the decision to grant or not to grant postponement must be reasonably and objectively justified from the facts on the grounds advanced for such.

“The Court is enjoined to exercise a judicious discretion, not founded on ill-will, malice and unreasonableness.

To an extent that the State are prevented by Rule 9 from changing attorneys, it means the application for postponement which is primarily anchored on the withdrawal of

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an attorney is not sustainable,” he said.

Leburu further explained that on the need to file a response to the supplementary heads filed by Kgosi, it was the State’s mere tactic to obtain a postponement.

He said he had perused such supplementary heads and in his view they had not traversed any legal point not previously covered in the main heads of argument.

On the right to legal representation by an attorney of one’s choice, he said such right was not absolute and for that reason the application for postponement so as to change an attorney was therefore refused.

The State had approached Court when the matter was scheduled for argument saying they wanted to change their attorney and also wanted time to peruse Kgosi’s additional documents.

However Kgosi opposed the application on grounds that the matter ought to be disposed of within a reasonable time particularly where his liberty and fundamental rights are at stake.

He also explained that the reason for the non-availability of an attorney was not good and sufficient ground to postpone the matter.

Meanwhile Kgosi who was indicted on March 5, 2020 on charges including corruption and abuse of office wants the decision of state to prosecute him for alleged National Petroleum Fund abuse be reviewed and set aside.

The former spy chief is denying any abuse of funds allocated to DIS saying that the decision to prosecute him was irrational and unreasonable. Attorneys Unoda Mack and Thabiso Tafila appeared for Kgosi while attorneys Mpho Letsoalo and Charles Gulubane appeared for the State. Judgement has been reserved for November 26, 2020.



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