At the heart of the appeal is a statement made by Justice Lakhvinder Singh Walia of the Court of Appeal in his judgment which sent Morupisi to prison on December 6, 2024: "I have agonised over the sentence to be imposed on the appellant bearing in mind that this court would be failing in its duty and seen to be eroding public confidence in the judicial system if the appellant were to escape with a rap on the knuckles. The court would also be seen to undermine the Honourable President’s stated desire to see an end to corruption."
The statement by the judge, according to Morupisi, meant that CoA was pandering to the whims and caprices of the Executive or politicians.
Because of this, a High Court bench judgment, which was handed by Justice Zein Kebonang with a dissenting judgment from Justice Masilo Matlhaka, freed Morupisi, setting aside the CoA sentence. An appeal was immediately filed.
The case was heard the next day (Saturday) before Justice Garekwe, but it was postponed to yesterday (Sunday). This time, the state reinforced and brought a five-man team of lawyers led by Senior Counsel Tshiamo Rantao. Rantao informed the court that the state has since decided to abandon the stay of execution application and will focus on urgency.
The state argued that the matter should be heard on urgency because the integrity of the apex court hangs in the balance. The lawyers argued that public trust in the apex court, which has been accused of "tripping over each other to impress the President" by Morupisi in his affidavit was affirmed by the lower court setting aside its decision to sentence the latter to seven years in prison.
The state further told the packed courtroom that they believed that the case was improperly before the court as the High Court, as per the hierarchy of the Administration of Justice, cannot overrule the Court of Appeal. The state further stated that the judgment posed a threat of a litany of litigation from convicts whose matters were put to a finality by the CoA under the pretext of Section 10 (1) of the Constitution.
The state further bemoaned that the statement complained of by Morupisi, which formed the basis of the judgment and further his release was made in passing and further that the sentiment by the former PSP that the CoA is being controlled by the Executive is malicious.
For his part, lawyer Obonye Jonas defended this. He argued that in a rather back-and-forth style with the judge that the appeal should not be heard on urgency as it does not meet the requirements of an expedited appeal.
Jonas was adamant that his client's case was not special and that there was no reason why the appeal should not follow the normal process like all the other cases.
"This matter is characterised as exceptional merely because a man called Morupisi is a party in this matter. The state has not placed anything before this court that proves it would suffer prejudice if the matter is not held in due course," Jonas argued.
To which the judge asked, "But when you applied at the High Court, it was on an urgent appeal, so now that it does not involve your client, are you saying it is not urgent?"
Jonas replied: "Just because a matter was filed as urgent at the lower court does not automatically mean it should also be considered an urgent matter with the court of appeal."
Jonas further pleaded with the court to separate a matter that is of public interest and a matter that the public is interested in, saying the two statements differ.
Responding to the judge on why his client said the Court of Appeal judges were "tripping over each other to impress the President," Jonas said the statement was figurative and meant no harm.
Jonas was further placed before court judgments in the past, which noted that an aggrieved person may appeal a CoA decision to the high court, and the High Court is empowered to entertain the matters.
In the end, Justice Garekwe noted that she would deliver her ruling on whether the appeal should be heard in an expedited manner on Wednesday. The matter emanated from the infamous Toyota Land Cruiser and the P500 million contract between the Botswana Public Officers Pension Fund (BPOPF) and Capital Management Botswana (CMB), an asset management company. During initial sentencing, Morupisi was, however, only given a suspended jail term instead of serving a prison sentence and ordered to pay P130,000. However, in an attempt to clear his name, Morupisi approached the CoA just before the 2024 General Election, hoping that it would reverse the judgment delivered by the High Court two years ago.
