In a rape case involving a former University of Botswana lecturer and Botswana Congress Party member, Brothers Malema, the defence is contesting the admission of an expert clinical psychologist as a witness, describing the move as an ambush.
Malema stands accused of raping a UB student (name withheld), then 18 at the time, on January 9, 2024.
It is alleged that the now-retired lecturer sexually violated the complainant when she had gone to the accused’s office to enquire about her marks.
Appearing before the Extension II Magistrate Court today for continuation of trial, the State indicated that it has an intention to introduce a new state witness who is an expert in clinical psychology.
Defence Counsel Busang Manewe challenged the application made by the State, rendering it inadmissible on numerous grounds, the core of which he argued were ambush tactics.
“We confirm that we are objecting to the calling of this witness, and the court should dismiss the application,” Manewe said.
Manewe stressed that it is not procedural for the State to introduce a witness midway through the trial as a prejudice, putting them in back foot.
“This is a criminal trial, a very serious one which the maximum sentence can be life. It is trite as per the Constitution that the accused has the right to be afforded all the relevant documents that are for this case and should be done so before the commencement of the trial,” he said.
Moreover, Manewe cried foul, stating that these are just backhand tactics by the prosecution to deny his client (Malema) the right to a fair trial.
“The defence needs to have all facilities to consult, formulate a defence strategy, and a proper and effective defence. This is just prejudice on my client, which he will suffer,” he said.
Furthermore, Manewe said he is baffled about the State’s 360-degree turn to include this expert witness despite being aware of her from the get-go, questioning if it was just underhanded tactics from the prosecution.
“The witness appears to have been there all the time, known to the State, but the State decided to play ambush. The State has given me the report of this expert, and it is apparent that this witness met the complainant from January 11, 2024, to May 25, way before the trial,” Manewe argued.
Manewe further submitted that the State is just trying to save face, realising how the case is in shambles.
Attempting to sway the court to his side, Manewe argued that the witness would be biased, as she was not commissioned by the State.
“This witness was commissioned by the complainant or her family, not by the State, and it now brings a very interesting issue of conflict of interest. Something is offish about it; something is not right, and maybe that is why the State is bringing the witness only now,” he submitted.
In closing, Manewe stipulated that it is not up to the State to decide when to bring a witness, but an exercise of the court.
In retrospect, Prosecutor Mmapatsi Tshimologo did not entertain the submissions made by the defence, making it clear that he is an officer of the court with 15 years' experience.
“I still stand by my application, and it is right that the court can call any witness at any stage, midway or commencement, when the witness appears essential to the purpose of arriving at justice,” Tshimologo said.
“I am an officer of this court, and there is no way you can separate me from this. I have a right in law to call the witness, and we are doing exactly what the law says,” Tshimologo said.
Tshimologo objected to Manewe's narrative that this is just an ambush on their end, highlighting that the witness has always been there from the get-go, and she now has to answer and explain certain issues to help the court.
Regarding the fear that will put the defence in prejudice, Tshimologo said there are mechanisms in place that they could use.
“There is cross-examination, so she will explain, and she won't testify and walk out of here. You can cross-examine her,” he said.
The State obliterated the defence’s submission that the witness will not be fair on them, elaborating that she is an expert who is registered and has to uphold all conduct.
Meanwhile, Chief Magistrate Kamogelo Mmesi is set to deliver a ruling on February 5 on whether the witness will be admitted or not. The case continues.
