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Criminal Lawyer loses 11 year battle to clear his name


The court of Appeal in Gaborone on Thursday dismissed a case in which a local attorney, Lydon Mothusi was challenging the relevance of the acquittal of his co-accused, Herbet Sikhakhane  on charges of conspiracy to obtain money by false pretences.


The court ruled that Mothusi had failed to establish that the acquittal on technical grounds of Sikhakhane destroyed any legal possibility of the continued existence of a conspiracy.


Sikhakhane and Mothusi were charged with obtaining money fraudulently from government between October 2003 and January 2004. The money amounted to several hundred thousands of Pula and Mothusi who has already served a prison term for the crime, wanted to clear his name.


He appeared before court in person and advanced legal argument in an attempt to persuade the Judges, J.G Foxcroft, Ian Kirby and Legwaila that the acquittal of fellow lawyer, Sikhakhane, resulted in the situation that any possible conspiracy conviction immediately fell away.


Both Sikhakhane and Mothusi had been tried in the Magistrate court and convicted but neither had made a confession implicating the other. For reasons which were never made clear before court, they lodged separate appeals and hearings. Justice Leburu in August 2010 set aside the sentence and conviction of Mothusi and Sikhakhane’s conviction and sentence were set aside three Months later by a different Judge. Sikhakhane’s ruling was derived from the strength of Leburu’s Judgment.


The Directorate of Public Prosecution appealed against the judgment and subsequently Justice Tafa found that there was sufficient evidence before him to justify the conviction of Mothusi on obtaining money by false pretences charge and he got an eighteen months prison sentence, twelve of which were suspended together with a fine of P1000.


However, the State could not shed light on the extraordinary fact that while Mothusi’s convictions were reconsidered on appeal , his co-conspirator, Sikhakhane has not again been brought before any court subsequent to the setting aside of his conviction.


“It is so that the decision of this court in 2011 followed as appealed by the DPP against one co-conspirator and not the other,” Justice Foxcroft pointed out.


However the state explained that the Prosecutor at the time, a certain Mr Ditodi who has since passed away could have shed light on such an extraordinary fact.


“Mr Mothusi spent some time submitting before us that the available evidence on record did not support the existence of a conspiracy at all. This argument went beyond the scope of the limited legal issue upon which he was granted leave to appeal to this court. In any event, the argument was entirely fallacious as is well demonstrated in the judgment of Justice Tafa,” Foxcroft added.


Mothusi’s attempt to raise the possibility of the missing evidence to support his case was also ruled as having gone beyond the scope of the appeal.


“It is a matter for regret that the many attempts to reconstruct the record and recover missing exhibits in this matter bore so little fruit, and that despite the direction of this court that the reconstruction exercise was to be completed by October 2011 whereupon the appeal would be argued on the material then available, this was only heard more than two years thereafter, with leave to appeal being granted by Justice Tafa on December 2014,” the Judge noted before levelling  the blame to the Magistrate who first heard the case and failed to protect the exhibits.


“Mr N. Bopa, former Chief Magistrate who first heard this case must share a good deal of the blame for not exercising proper control over his own handwritten notes and the box of exhibits in his custody at the time when they went missing. His written report on the reconstruction was inadequate and in conflict with the schedule of defects in the record later agreed between the State and Defence,” the judge expressed his disappointment.


He was irked more so by the fact that the case had dragged on before the courts for the past eleven years and Mothusi had to wait for that long to get the final result of his trial.


Mothusi told court that he had already completed his prison sentence but wanted the court to clear him of the conspiracy.  During the trial period, Mothusi who is a criminal lawyer could not practice and the Judge had made sure that the copy of the current ruling is passed on to the Law Society of Botswana which is very likely to continue prohibiting him from practice due to the existing conviction.


“I direct that since the case involved two legal practitioners, a copy of this judgement and of the appeal record is to be served upon the Botswana Law Society for information and action should it deem this to be necessary,” Foxcroft concluded the ruling in unison with other Judges.


He had in fact earlier mentioned that a scheme by the two co-conspirators to make money unlawfully was clearly demonstrated on the evidence. None the less, Sikhakhane was long cleared of the crime.

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