The three judges panel, CoA President Tebogo Tau, Justices Baaitse Nkabinde, and Lakhvinder Singh Walia, say they are having a hard time comprehending the sentence because on all the counts Morupisi faced the High Court did not give any reasons for each of the sentence. The judges’ statement follows their confirmation of the former Permanent Secretary to the President's (PSP) guilty verdict last week, and giving him a chance to file heads of arguments addressing the court on why his sentence should not be varied. Morupisi was convicted in November 2022 on two counts of corruption and one count of money laundering and was on count one sentenced to two years imprisonment wholly suspended for three years on the condition that he does not commit the same offence. On count two, Justice Chris Gabanagae of Gaborone High Court fined him P50, 000 or five years imprisonment should he default, whilst on count three, he was fined P80, 000 or eight years imprisonment, should he default.
Morupisi was further given 90 days to pay whilst the Toyota Land Cruiser, which was proceeds of crime, was forfeited to the State. Facing a possible jail term if the CoA deems fit, Morupisi armed with a new attorney on Wednesday before the panel requested a chance to motivate his submissions on why his sentence should not be varied and why it would not be practical to be given a jail term. During his attorney Obonye Jonas’ submissions, the judges engaged extensively with him pointing out that they were having a hard time with the court a quo sentence as they did not know what informed his decision. The defence lawyer whilst conceding that his client was a pensioner, on count one of corruption where the maximum fine is P5000 or three years imprisonment or both, he promised to his client will pay a maximum fine of P5, 000, for count two of corruption with a maximum fine of P500, 000 or 10 years imprisonment or both, he promised the client will afford P250,000 and on the third count of money laundering it imposes a maximum fine of P20 million or 20 years imprisonment or both they client promised prayed to pay a fine of P300, 000. “We have difficulty with the High Court sentence because the judge did not apply himself and give reasons as to how and why he arrived at the sentence he gave out,” said Justice Nkabinde.
She explained that there was clear misdirection on the part of the judge because looking at the severity of the crime, he did not do justice in explaining the sentence, giving reasons for each sentence. Nkabinde also said the attorney gave them case studies where the convicts were given custodial sentences like the former national police commissioner of the South African Police Service, Jackie Selebi despite being old, questioning why Morupisi cannot be given the same. The judge further said what aggravated the situation was that Morupisi showed no remorse to warrant that they could temper justice with mercy. “There is a talk about remorse and what makes it difficult is that there was no remorse shown. Now that there is a possibility of custodial sentence all of a sudden it is said that he is remorseful,” she said. Justice Walia also weighed in on the mercy part saying that there is a degree to mercy and it depends on what the court deems to fit mercy. “There is a degree to mercy, the court may find out that a custodial sentence is mercy especially that the convict is not working and is a pensioner, he might not have the means to pay the money,” he said. Earlier on, Jonas tried to persuade the court not to give his client a custodial sentence on reasons that he was living on borrowed time as an elderly person and a prison might not be the best place for him.
He explained that Morupisi was old, a pensioner and had no source of income to pay the hefty price imposed on him, let alone go to prison. “Not to say we are not alive with the severity of the crime but we request that you temper justice with mercy with the reasons given. If the court finds that there was misdirection with the sentence, we plead that he be given a fine rather than a custodial sentence. Though he does not have any means to earn an income as a pensioner, he can run around and see what to do,” he pleaded with the court. Jonas emphasised that he believed the High Court judge used his discretion not to give the sentence without diving much into the reasons as to why and how he arrived at it and believes that there was no misdirection which may vary the sentence. He concluded by pointing out that he did not mean that his client did not show any remorse when he did not plead guilty but simply chose to fight and not concede. Sentencing is scheduled for December 5, 2024.
The CoA judges' concerns were that the High Court judge has misdirected himself by not articulating the reasons for his decision. Therefore, the likeliness is that the CoA would set aside the decision of the lower court and possibly impose a custodial sentence.
