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Moroka not yet out of the woods

Daniel Neo Moroka

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.

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Malawi appeals for help over Cyclone Freddy at PAP

17th March 2023

As of yesterday evening, the death toll from the Cyclone in Malawi had risen from the initially reported 190 to 225 in a short period of time, over 20 000 people have been displaced, and the worst of fears are yet to come as the fatalities continue to mount. This was reported by a Malawi Member of Parliament attending the Pan African Parliament session in Midrand, South Africa, Hon Steven Mikiya.

Mikiya was giving a statement on behalf of Malawi as the ongoing Pan African Parliament in South Africa.

Mikiya said the Cyclone has wreaked the most havoc in our country’s Southern Region. “The Southern Region, has been hardest hit with widespread heavy rains and strong winds. This caused a rapid rise in water levels and subsequent flooding. Meanwhile, power supply has been disrupted, roads blocked off and rendered impassable and mudslides have also been widely reported,” he said.

He made a special appeal to the PAP:  “Where I come from, there is a parable which I would like to share with you which says, “mzako weniweni umamudziwa panthawi ya mavuto.” Simply put, a friend in need is a friend indeed or put loosely, a person who helps at a difficult time is a friend you can rely on.”

Mikiya continued: “Yes! Misfortune has knocked on our door and left in its wake a trail of death and destruction that may take years to fully recover from. However, amidst these difficulties, I have every reason to believe that sometimes when you are in a dark place and think you have been buried, you have actually been planted. My belief, Mr. President, arises out of my faith in this gathering and out of the conviction that it is not coincidental that Cyclone Freddy hit Malawi and Mozambique while the delegations of both countries are here.”

According to Mikiya, the level of destruction, the loss of life, property and the decimation of the entire fabric of established communities has been unprecedented. He noted that all this, is coming at a time when Malawi was starting to show signs of recovery from the deadly COVID-19 pandemic that also came hard on the heels of Cyclone Ana and Cyclone Gombe that left a similar trail of devastation and destruction in Malawi and neighbouring countries.

As of Sunday, this week, from the 12th of March, Malawi and Mozambique have been facing the devastating effects of Cyclone Freddy that made a landfall over Mozambique on Saturday the 11th and reached Malawi by Sunday the 12th of March.

The Malawi legislator said he has absolute faith in the Pan African Parliament, which he described as “a league of nations brought together by a shared ancestry, history, identity as well as our beloved continent which we inhabit”.

Meanwhile, Malawi President, Lazarus Chakwera, has declared a State of Disaster in the affected areas effectively appealing for local and international support for the affected families.

Mikiya appealed to the Pan African Parliament drawing “positive” inspiration from Europe which rallied around Turkey after the destructive earthquakes to bring the much-needed relief and humanitarian aid to the people of Turkey.

He said Africa should demonstrate to the world that the African Union and its Organs are not mere talk shows, but effective institutions which stand up when it matters most.

“Alone, it may take us a lifetime to fully recover, but together, in the Pan-Africanist spirit of Ubuntu, our lives and livelihoods will return to a semblance of normality in record time. This is the time to live by our operative mantra, “One Africa, One Voice.” Mikiya concluded.

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