The Court of Appeal rescued the Director of Public Prosecution (DPP) lead investigator and prosecutor in the Butterfly case when it set aside a referral order issued by High Court Judge Dr. Zein Kebonang.
When he acquitted and discharged Welheminah ‘Butterfly’ Maswabi from the criminal charges last year, Justice Dr. Kebonang issued an order of referrals for the DPP boss Advocate Stephen Tiroyakgosi, the investigator Jako Hubona and the prosecuting counsel Priscillah Israel to the supervisors and/or higher authorities to carry out further investigations, disciplinary proceedings and administer sanctions where appropriate.
The Appeals Court in its judgement set aside the order, after Maswabi’s lawyers conceded that it was improper for the court to issue such an order without affording the parties an opportunity to address it where such issue was raised out of one’s own volition (mero motu).
The Court of Appeal's five-member bench led by Court President Tebogo Tau also set aside the acquittal order in respect of all the charges brought against Maswabi.
Maswabi was in October 2019 charged with three counts of possession of unexplained property, Financing Terrorism and false declaration of a passport. The state has since withdrawn the terrorism financing charge with the liberty to reinstate it.
Justice Tau stated that it was incompetent for the High Court to acquit Maswabi, on all charges levelled against her. She said the DPP’s attorney admitted that the order discharging Maswabi on the charges of possession of unexplained property and false declaration was properly issued.
“This was a proper move given the provisions of Section 150 (4) of the Criminal Procedure and Evidence Act. The order by the court a quo to discharge the Respondent on the two counts was therefore properly made.
“As the Respondent had already been discharged on the charge of financing terrorism, it was improper for the court a quo to revisit that charge. The court erred in that regard,” said the court president.
In his judgement Justice Dr. Kebonang said the conduct of the DPP and all those involved in the investigation and prosecution of Maswabi on falsified and fabricated evidence is open to scrutiny.
He said the state through the DPP, DCEC and DIS offices fabricated and manipulated evidence, and framed and falsely implicated Maswabi.
According to Justice Dr. Kebonang, the decision to prosecute must never be on the whims of those called upon to make them, nor must it depend on who occupies the office or new administration. He explained that it must depend on whether there is probable cause to prosecute. “There can never be probable cause when those entrusted to make such decisions are the ones at the forefront of fabricating and concealing evidence. The actions of the Respondents have brought disrepute to the administration of justice.
“For instance, Judge Gabanagae has had to deny bail to the Applicant on a clearly fabricated case. Various courts have expended resources towards adjudicating a case that was falsified from inception by the 1st Respondent and others.
“The type of misconduct by all those involved in the prosecution of the Applicant is so severe that it calls into question the integrity of the entire legal system. It shocks one’s conscience and demands that those involved must be held accountable,” the Judge said.