High powered De Beers Botswana Resident Director and one time Minister of Trade and Industry, Daniel Neo Moroka’s attempt to wriggle free of having a Magistrate relook at his case of killing a Tsabong teenager suffered a potentially grave setback this week.
In a characteristic David and Goliath case that saw a peasant from deep in the hinterlands overcoming a power charged diamond executive, the deceased Kealeboga Danster’s mother, Margaret Danster won a relief before Lobatse High Court to have a Magistrate in Tsabong or Gaborone carry out a preparatory examination against Moroka, in respect to the death of the late Danster.
A preparatory examination is a process done within the context of a trial for purposes of a trial or to establish if there is evidence upon which a suspect can be indicted in the case of matters before the High Court. It is carried out in context of ongoing proceedings where there is already a charge laid before court and the decision to be taken is whether to commit the accused to trial before High Court.
Moroka’s counsel Kgosiitsile Ngakaagae had argued that Danster could have actually applied for an Inquest and not a preparatory examination. Justice Nthomiwa highlighted that inquests are normally conducted in any case where a person dies other than by natural causes or under unclear or suspicious circumstances.
The late Danster who was Moroka’s farmhand allegedly died in a hail of gunshot projectiles to the lower right chest and lower abdomen area that had injured his lungs and liver.
In delivering his ruling, Justice Godfrey Nthomiwa observed that although the procedure is part of the country’s Criminal Procedure and Evidence Act it has not been used for a very long time, which suggested that the elder Danster’s council fought tooth and nail and practically resurrected a dead case .
He stated: “A search through our Law Reports shows that the last time it was used was around 1974…if the system was used again it would have been in unreported cases.
This therefore makes its use very rare indeed.” He also stated that his search through the South African system which is closely linked to Botswana’s yielded very old cases on the also giving the impression that the procedure is slowly dying away.
He continued: “today cases on indictment are not subjected to preparatory examination but go straight for trial leaving the decision of whether there is enough evidence or not to the presiding officer. The same is the case with cases that are tried before the magistrate court.”
Section 77(1) of the Criminal Procedure and Evidence Act states that: “If at the close of the case for the prosecution or after hearing any evidence in defence, the magistrate considers that the evidence against the accused person is not sufficient to put him on his trial, the magistrate shall forthwith order him to be discharged as to the particular charge under enquiry; but such a discharge shall not be a bar to any subsequent charge in respect of the same facts nor derogate from the powers of the Director of Public Prosecutions under section 81.”
Moroka was saved from prosecution after Directorate of Public Prosecutions (DPP) issued a ‘nolle prosequi certificate’ on the 2nd of September 2014.The certificate is a declaration that DPP shall not prosecute. It argued that the case could not be strong enough to secure a conviction.
In his defence, Moroka argued that the elder Danster has not obtained the certificate to prosecute in terms of the Criminal Procedure and Evidence Act, stating: “she therefore has not assumed the capacity of a private prosecutor within provisions of the Act.”
He added that the DPP and the Botswana Police Service have not been cited as parties to the application when the conduct of the preparatory examination involves them.
Moroka also argued that there are no charges registered against him and hence no legal basis for a preparatory examination and that the elder Danster had not disclosed to him the material and witnesses on the basis of which she seeks a preparatory examination.
Meanwhile the elder Danster stumbled in another case where she sought P 2 million in compensation from Moroka. Danster argued that the actions of Moroka in killing the deceased deprived him (the deceased) of the opportunities of working and enjoying the normal period of life and her of prospective financial support from the deceased.
Moroka counter-argued that Danster did not disclose a cognizable cause of action and did not disclose a factual basis for alleged liability.
Nthomiwa ruled by granting Moroka leave to file the notice to except or plea out of time within three court days.
Botswana Police Service (BPS) has indicated concern about the ongoing trend where the general public falls victim to criminals purporting to be police officers.
According to BPS Assistant Commissioner, Dipheko Motube, the criminals target individuals at shopping malls and Automated Teller Machines (ATMs) where upon approaching the unsuspecting individual the criminals would pretend to have picked a substantial amount of money and they would make a proposal to the victims that the money is counted and shared in an isolated place.
“On the way, as they stop at the isolated place, they would start to count and sharing of the money, a criminal syndicate claiming to be Criminal Investigation Department (CID) officer investigating a case of stolen money will approach them,” said Motube in a statement.
The Commissioner indicated that the fake police officers would instruct the victims to hand over all the cash they have in their possession, including bank cards and Personal Identification Number (PIN), the perpetrators would then proceed to withdraw money from the victim’s bank account.
Motube also revealed that they are also investigating a case in which a 69 year old Motswana woman from Molepolole- who is a victim of the scam- lost over P62 000 last week Friday to the said perpetrators.
“The Criminal syndicate introduced themselves as CID officers investigating a case of robbery where a man accompanying the woman was the suspect.’’
They subsequently went to the woman’s place and took cash amounting to over P12 000 and further swindled amount of P50 000 from the woman’s bank account under the pretext of the further investigations.
In addition, Motube said they are currently investigating the matter and therefore warned the public to be vigilant of such characters and further reminds the public that no police officer would ask for bank cards and PINs during the investigations.
Botswana Congress Party (BCP) leadership walked out of Umbrella for Democratic Change (UDC) National Executive Committee (NEC) meeting this week on account of being targeted by other cooperating partners.
UDC meet for the first time since 2020 after previous futile attempts, but the meeting turned into a circus after other members of the executive pushed for BCP to explain its role in media statements that disparate either UDC and/or contracting parties.
The Director General of the Directorate on Corruption and Economic Crimes (DCEC), Tymon Katlholo’s spirited fight against the contentious transfers of his management team has forced the Office of the President to rescind the controversial decision. However, some insiders suggest that the reversal of the transfers may have left some interested parties with bruised egos and nursing red wounds.
The transfers were seen by observers as a badly calculated move to emasculate the DCEC which is seen as defiant against certain objectionable objectives by certain law enforcement agencies – who are proven decisionists with very little regard for the law and principle.