Former Directorate of Intelligence Security (DIS) spy agent, Welheminah ‘Butterfly’ Maswabi's attorney has labelled the prosecution’s move to withdraw charges against her as 'contemptuous'. Maswabi's defence argues the state knew very well an acquittal and discharge application was pending before the court, which the state had failed to respond to.
Appearing before the High Court's Justice Zein Kebonang on Wednesday where the defence sought an acquittal and discharge, Mack said the review application was important because the withdrawal of charges pending before the Magistrate’s Court had nothing to do with the review application.
“This review application is paramount because the proceedings before the Magistrate have nothing to do with it. The withdrawal application by the state before the Magistrate would have been different if the withdrawal of charges was with prejudice,” he said.
He explained that the state only did that because it wanted to frustrate the hearing of the review application.
Mack said the state knew what they were doing when attempting to withdraw charges because they had failed to file replying papers in regards to the review application.
“As of yet there is no withdrawal and the decision of the Magistrate would not make any difference because for us we want acquittal and discharge, and they are only withdrawing to prevent this from happening,” he said.
Mack also argued that there was no need for the state to withdraw charges without prejudice because there was no evidence to support the case in the first place.
He pointed out that the evidence used against his client was fabricated and that they have proven that which the state failed to dispute.
“We have proven that the evidence was fabricated, especially with the charge of the unexplained property, all the properties that the state listed as that of my client belonged to BHC (Botswana Housing Corporation), and there is proof that one is an inheritance from her father. How can an inheritance be an unexplained property? The state has no standing to want to bring the charges again when they failed to discredit the evidence we brought forward,” he said.
The prosecution, on one hand, having failed to file any replying affidavit to the review application, filed pleadings before the judge raising points of law.
From the Attorney General’s Chambers, senior attorney Charles Gulubane said there was no need for the review as the matter would be dealt with at the lower court.
“Decision to review is needless because the dispute before this court is no longer relevant as the decision to charge has been reversed,” he said.
He explained that the order sought by the defence of acquittal and discharge was incompetent as the same matter was pending before the Magistrate.
The state had a few weeks ago applied to the Magistrate’s Court to withdraw Maswabi’s two remaining charges being possession of the unexplained property and false declaration of a passport.
Meanwhile, Maswabi in the review application argued that the decision to charge her was not only irrational and illegal but outright malicious and it amounted to an abuse of prosecutorial mandate.
She is accusing the state of fabricating information against her through the Directorate on Corruption and Economic Crime investigators, which she said was malicious and defamatory against her character.
Prior to the review application, she had on many occasions demanded that her charges be dropped and she had written a demand letter to the Directorate of Public Prosecutions.
Judgment will be delivered Friday, next week.