Embattled former directors of Capital Management Botswana (CMB) are not yet off the hook after the Court of Appeal (CoA) allowed the State a chance to an expedited appeal and stayed the execution of a recent judgement that acquitted them.
Marsland has been held in a South African prison awaiting extradition to Botswana after being arrested by Interpol for allegedly trying to flee to Germany.
Following that High Court judgement delivered by judge Boipuso Tshweneyagae on August 30, 2021, the State launched an appeal, then applied for a stay of that judgement, for the appeal to be expedited.
However, they were dealt a blow last week Thursday when CoA’s Justice Isaac Lesetedi granted the director at the Directorate of Public Prosecutions (DPP) a stay of execution of the High Court decision as well as ordering that the appeal against that judgement should be heard on an expedited basis.
Justice Lesetedi said the appeal ought to be heard on urgency in the interest of justice as the appeal also affects a substantial number of people who stand to benefit from the pension fund.
He said another point that makes the appeal to be of public interest and importance is the question of the DPP’s contested prosecutorial discretion.
According to Justice Lesetedi, there are several litigations before the High Court by sophisticated accused charged with white-collar crimes in which they challenged the DPP’s decision to charge them with criminal offences.
“Some of the decisions on those matters are on current appeal and it is important and in the national interest the question of the proper remit of the court’s powers of review in this regard is settled to avoid many appeals on the point,” said Lesetedi.
He said the delay in the outcome of this appeal if it is heard in the normal way may also have effects of dragging the finalisation of the extradition proceedings if the South African court decides to wait for the outcome of the appeal.
Lesetedi decided that Marsland will not suffer any prejudice if the matter is heard urgently, but the decision could stand to benefit him.
He said there is a prospect of success of the appeal.
On the issue of the stay of execution of Justice Tshweneyagae's judgement, Lesetedi said if the judgement is not stayed one of the accused person’s will use it to flee.
“There is no doubt that if the first respondent (Marsland) were to be released from the legal restraints of the extradition proceedings there would be nothing in place to limit his movements so as to make him available should the appeal succeed,” he said.
“This would be highly prejudicial to the DPP’s efforts to bring the suspected perpetrator of the crime to justice, a rule of law imperative,” he added.
Lesetedi further noted that it is evident that Marsland wants to use the judgement to be released from prison; as such one cannot fault the DPP for having that fear.
He said that in his view, the respondents will not suffer any prejudice if the stay of execution is granted compared to the applicants.