Dismissing Patrick Ndlovu's application, who is alleged to have defiled the minor sometime in 2020 in Masunga, Justice Nyamadzabo said the application had no merit because it was brought under an incorrect Section (278) of the Criminal Procedures and Evidence Act. “Section 278 will be applicable at the Magistrate's Court if the prosecutor did not turn up in court for the case. It does not appear whether that application was made before the Magistrate's Court from the applicant’s papers.
The respondent contends that the application should be dismissed because trial dates in the matter have already been set for October,” Nyamadzabo said.
The case faced challenges in commencing, Nyamadzabo explained, in 2021 due to the COVID-19 pandemic. It was reassigned to another prosecutor and the resignation of another prosecutor from the Directorate of Public Prosecutions (DPP) before it led to the case being assigned to a new prosecutor.
“The new prosecutor appeared before the Masunga Magistrate's Court in August 2022 and confirmed that the trial dates of October 26, 27, and 28 were suitable for the state. Given the above submissions made by the prosecution, I find that this case is not properly before this court. This is more especially in view of the seriousness of the offence the applicant is facing of allegedly defiling a mentally unsound minor and another charge of entering Botswana illegally. The end result is that this application is dismissed,” Justice Nyamadzabo said.
