Morupisi withdrawal argument ‘opportunistic’


The Court of Appeal has refused to grant politician Carter Morupisi the grace to withdraw his appeal. The former Permanent Secretary to the President (PSP) and now the Botswana Patriotic Front (BPF) chairperson had indicated earlier this year around February that he wished to withdraw his appeal.

The appeal had been filed in relation to his conviction on two counts of corruption and one count of money laundering. However, on Tuesday the bench of the Court of Appeal President Justice Tebogo Tau, Justices Lakhvinder Singh Walia and Baaitse Nkabinde told Morupisi he will go ahead with the appeal against his wishes. In a judgment headed by Justice Walia, Morupisi was said to have used in his argument for withdrawal a court rule which make no provision for leave of court calling it rather opportunistic “The appellant’s argument that the withdrawal was in terms of Rule 43 (1) where no provision is made for leave of court is at best opportunistic,” said Walia. He explained that there were also shades of disingenuity in that Morupisi in his argument deliberately avoided referring to a specific subrule under which the withdrawal was made. Justice Walia stated that subrule (1) was only sprung on them in the heads of argument and that what Morupisi sought to do was to isolate subrule (1) from the other provisions of Rule 43. “This he cannot do, for in terms of Section 29 (1) of the Interpretation Act (Cap 01:04), an Act or Instrument shall be construed as a whole. 25. Each of subrules (1) and (4) of Rule 43 deals with the withdrawal of an appeal. Subrule (1) deals with withdrawal before the hearing, and subrule (4) deals with withdrawal after an appeal has been called for hearing,” he pointed out. Justice Walia said while no leave is required if withdrawal is made before the hearing, no withdrawal may be made without leave of court after the appeal has been called.

The judge, in detailing the ruling, explained that in terms of the Rules of the Court, a clear distinction is made between civil and criminal appeals. He stated that Rule 43 is concerned with criminal appeals and that each of these rules is differently expressed and has its own characteristics. According to the judgment, Rule 43 provides that, an appellant may, at any time before the hearing, abandon his or her appeal or application by giving notice of withdrawal thereof in writing to the Registrar, and upon such notice being given the appeal shall be deemed to have been dismissed by the court, and shall be so entered in the criminal Appeal Register. It further reads that upon receipt of a notice of withdrawal duly completed and signed or marked by the appellant or his or her authorised representative, the Registrar shall give notice thereof to the respondent, the prison authority, and the Registrar of the court below, and shall return to the Registrar of the court below the original file and exhibits received from him or her. Justice Walia said the rule shall not apply to an appeal involving the sentence of death, which is dealt with in terms of Rule 4. “After an appeal has been called on the date set for hearing, it may be withdrawn only with the leave of the court, which 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 the conviction returned or the sentence imposed by the court below. (subrule (3) above has been held to be ultra vires the Court of Appeal Act),” said Justice Walia. He stated that the issue under consideration in the matter is based on a proper interpretation of Rule 43, revealing that in his view, the determination can be made by the application of interpretation generally referred to as the golden rule. “The golden rule, simply stated, Iis that the language in a document or statute is to be given its grammatical and ordinary meaning unless that would result in some absurdity, repugnancy or inconsistency with the rest of the instrument. In applying the golden rule, sight must not be lost of the context in which the provision to be interpreted is used,” Justice Walia said.

Editor's Comment
CoA brings sanity to DIS/DCEC long-standing feud

This decision follows the raiding of the office of the former Director General of the DCEC, Tymon Katlholo early 2022 and his staff officer by the DIS operatives who reportedly took files that they had targeted.After all back and forth arguments, the CoA has set the record straight giving an invaluable lesson to the DIS that it was no super security organ and it does not have any powers to cogently supervise other security organs including the...

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