FRANCISTOWN: High court judge Kholisani Solo discharged and acquitted a man who last year was found guilty by the trial court for possession of uncut diamonds without permission.
Solo freed Messiah Mbo, 37, after the prosecution failed to furnish the High Court with a full record of proceedings from the lower court.
Mbo’s attorney Kesegofetse Molosiwa successfully applied for the case to be dismissed when the matter came for status hearing yesterday.
The prosecution was to brief the court with regards to status of the record from the magistrate court.
The prosecution could not tell the court when the record would be available.
Relying on his heads of arguments, Molosiwa made an application for Solo to discharge and acquit Mbo on the basis that his application for appeal before the High Court could not be properly ventilated because a major portion of the record of proceedings from the Magistrate Court is irretrievably lost and therefore cannot be reconstructed.
Molosiwa argued that his client’s application to appeal his sentence would be greatly prejudiced in the absence of the record of proceedings.
Mbo was sentenced to seven years in jail for the offence. He also successfully applied to be given bail because of the absence of the record of proceedings.
Prosecutor Wedu Mbongwe from the Directorate of Public Prosecutions (DPP) said she was in agreement with Molosiwa.
“I agree with the defence counsel that an appeal may be upheld if some parts of the record proceedings are missing. There are some prospects of success because the record is missing,” said Mbongwe.
She said she met the court clerk who was recording the proceedings when Mbo appeared at the Magistrate Court.
Mbongwe said that the clerk told her that she was unaware that some part of the record was missing.
Mbongwe said that she was puzzled by what may have led to the omission because the court clerk was present throughout Mbo’s trial.
Solo said that he was also in agreement with the reasons advanced by the defence attorney.
During the opening of the legal year this year, the Chief Justice Maruping Dibotelo said the public might lose confidence in the judicial system if cases are dismissed not based on merit.
“One too many technical acquittals not based on merit, but due to inordinate delays, lost and inadequate evidence or even deficient prosecution could escalate loss of investor and public confidence on the system’s capacity to address cases in this country,” said Dibotelo.