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Morupisi appeal proceeds against his wishes

Carter Morupisi. PHATSIMO KAPENG
Carter Morupisi. PHATSIMO KAPENG

Convicted former Permanent Secretary to the President (PSP), Carter Morupisi, has been denied leave to withdraw his appeal application.

He appeared before the Court of Appeal (CoA) on Friday with the hope that his litigation would come to an end but the bench of justices, Baaitse Nkanbinde, Singh Walia, and the apex court President Tebogo Tau refused to grant him his wish. Morupisi, who is also the Botswana Patriotic Front (BPF) chairperson, had filed an application for leave to withdraw his appeal for reasons amongst others being financially exhausted. He had tried before to withdraw the appeal but was told he did not follow court rules by seeking leave first, the mistake which he then rectified. Justice Nkabinde, when denying Morupisi leave, said despite his complaining of delays on his appeal he has failed to make out a case for leave to be granted in terms of the rules of the court. "The applicant has complained about delays in prosecuting his appeal.

If all the steps taken by him do not constitute tardiness, I don't know what they are. The delay in finalising the appeal which was ripe for hearing as of February 1, 2024, is attributed to the applicant and no one else," she said. She explained that the array of explanations by Morupisi as to why he is entitled to be granted leave to withdraw was irrelevant and potentially false for determining whether leave should be granted, especially when the court had already informed the parties that consideration was being given to vary the sentenced imposed by High Court. Nkabinde added that the reason for Morupisi to seek leave to withdraw the appeal when the court was seized with the appeal was and still is to thwart any such consideration.

"I hold this view because the notice of withdrawal was only filed approximately three weeks later and this application was launched on June 24, 2024, about five months later," she said. The judge also pointed out that Morupisi's contention that his application should succeed because there is no competent appeal on sentence and that the court has not yet decided that it was a proper case where it should exercise its power to vary the sentence was without merit. She explained that Morupisi's contention was incorrect because the parties were informed on February 1, 2024, of the court's consideration to vary the sentence.

"The contentions have no merit, whatsoever. First, disingenuously the applicant posited that this court hasn't yet decided that this is a proper case where it should exercise its power to vary the sentence. That is incorrect. The parties were informed in that regard," Justice Nkabinde said. "Second and self-serving the applicant misread rule 43 (4) of Rules of Court. The language of this subrule is plain and straightforward. Subrule (4) unambiguously makes it clear that an appeal 'may be withdrawn only with leave of the court' which leave shall not be granted if the court is of the view that it is proper to exercise any of its powers under rule 32 to vary conviction or sentence by the court below," she detailed. She emphasised that Morupisi sought to read his own words into subrule (4), posting that the court can decide to vary the sentence only after it has heard the parties and dismissed his appeal on conviction.

Justice Nkabinde said the words the appellant sought to squeeze into the text of the subrule were non-existent pointing out that it was against tenets of interpretation to squeeze words into enactment to arrive at a meaning that was never intended by the lawmaker. At the end, Nkabinde stated that what the court may decide concerning the sentence was speculative and best be left for another day. In his appeal, Morupisi sought to overturn his conviction. He was convicted on two counts of corruption and one count of money laundering.

On count one he was sentenced to two years imprisonment wholly suspended for three years on condition that he didn't commit the same offence while on count two, he was fined P50,000 or five years imprisonment should he default, while on count three, he was fined P80,000 or eight years imprisonment, should he default. He was further given 90 days to pay while the Toyota Land Cruiser, said to be proceeds of crime, was forfeited to the State and that is where his appeal was launched. The case continues on Wednesday this week.

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