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CoA orders for use of breathalyzer pending appeal

Court of Appeal (CoA) Justice Lesetedi has this week issued out an interim order permitting for the continued use of Intoximeter EC/IR (breathalyzer) by the Botswana Police Services (BPS).

This order comes after the provocative High Court judgement, that in terms of the law the breathalyzer validates drunken driving. This was a judgement delivered by Justice Lot Moroka, in the matter in which Freeman Mapukule was challenging a Magistrate ruling delivered in favor of the Directorate of Public Prosecutions.

The DPP had filed an application on urgency upon which leave to appeal to the CoA out of time and on an expedited basis was granted.  The Registrar of the Court therefore is yet to obtain the judgement from the Francistown High Court and prepare it for the hearing of the appeal which the court ruled that possible dates would be after January 2020.

In his judgment Moroka ruled that using the breathalyzer name coded Intoximeter EC/IR, the BPS was using was unlawful and not prescribed by the Minister in accordance with the law that is in particular with the Road Traffic Act. Therefore as a result of that, the act of testing appellant was as such nullified. Moreover Moroka had ruled that there is no evidence and the failure to provide the specimen of breath was without reasonable excuse, and consequently that the second count cannot stand.

“In the final analysis, for the reason of the unlawful breathalyser and the concluding grounds the appeal ought to succeed. The appeal against conviction succeeds in both counts and the following orders are hereby made: the conviction and sentence are hereby quashed and set aside in respect to both counts and the appellant is discharged and acquitted,” Moroka had held in the judgement.

The offence of failure/ refusal to provide a specimen of breath is created by section 47 (5), of the Road Traffic Act. The section provides that: “a police officer may require any person who is driving or is in charge of a motor vehicle, to provide at any place which that officer may specify, a specimen of breath for analysis by means of a breathalyser of the type prescribed by the Minister.” 

Has the Intoximeter CT/RS been prescribed by the Minister as permissible for use in Botswana for purposes of the Road Traffic Act?

In 2013, the Minister prescribed a new generation of breathalysers’ permissible for use in Botswana. This is Statutory Instrument No 95 of 2013. Section 2 of the Statutory Instrument provides that: “for the purpose of Section 47 of the Road Traffic Act, the breathalyser which shall be used for the analysis of specimens of breath, shall be any of the types of devices specified in the Schedule hereto: Alcometer, Intoxilyser, Drager Alcotest, Alco Sensor, Intoximeter, Lifeloc, RBT IV, Alcotech alert and Intox.”


Sergeant Phepheng had told the court that the type of instruments used to test the appellant’s alcohol level was the said unlawful Intoximeter EC/IR. Moroka appointed out in the judgement that; “this type of breathalyser does not form part of the list of breathalysers No. 18 prescribed for use by the Minister in terms of Statutory Instrument.”  Refusal or failure to provide a specimen of breath or blood is not unlawful per se. It is the failure and or refusal, without reasonable excuse that constitutes an offence.


In terms of the law, he said the current High Court ruling on the matter had taken precedence and as such motorists could not take the breathalyser as the machines were not lawfully sanctioned. However the order issued means that the police can for now use the breathalyser machine.

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BDP decides Balopi’s fate

22nd November 2021
Balopi

The Botswana Democratic Party (BDP) Central Committee (CC) meeting, chaired by President Dr Mokgweetsi Masisi late last month, resolved that the party’s next Secretary-General (SG) should be a full-time employee based at Tsholetsa House and not active in politics.

The resolution by the CC, which Masisi proposed, is viewed as a ploy to deflate the incumbent, Mpho Balopi’s political ambitions and send him into political obscurity. The two have not been on good terms since the 2019 elections, and the fallout has been widening despite attempts to reconcile them. In essence, the BDP says that Balopi, who is currently a Member of Parliament, Minister of Employment, Labour Productivity and Skills Development, and a businessman, is overwhelmed by the role.

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BDF-Namibians shootings autopsy report revealed

22nd November 2021
BDF

The Botswana Defence Force (BDF)-Namibians fatal shooting tragedy Inquest has revealed through autopsy report that the BDF carried over 800 bullets for the mission, 32 of which were discharged towards the targets, and 19 of which hit the targets.

This would mean that 13 bullets missed the targets-in what would be a 60 percent precision rate for the BDF operation target shooting. The Autopsy report shows that Martin Nchindo was shot with five (4) bullets, Ernst Nchindo five (5) bullets, Tommy Nchindo five (5) bullets and Sinvula Munyeme five (5) bullets. From the seven (7) BDF soldiers that left the BDF camp in two boats, four (4) fired the shots that killed the Namibians.

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Gov’t confused over Moitoi’s UN job application

22nd November 2021
VENSON MOITOI

The former Minister of Foreign Affairs and International Cooperation, Pelonomi Venson-Moitoi’s decision to apply for the positions of United Nations Special Representative of the Secretary-General (SRSG) and their deputies (DSRSG), has left the government confused over whether to lend her support or not, WeekendPost has established.

Moitoi’s application follows the Secretary-General’s launch of the third edition of the Global Call for Heads and Deputy Heads of United Nations Field Missions, which aims to expand the pool of candidates for the positions of SRSG) and their deputies to advance gender parity and geographical diversity at the most senior leadership level in the field. These mission leadership positions are graded at the Under-Secretary-General and Assistant Secretary-General levels.

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