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Botswana: State Loses Committal Papers in Murder Case
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Mmegi/The Reporter (Gaborone)
OPINION
17 April 2008
Posted to the web 17 April 2008
Oarabile Mosikare
Francistown
The state cannot locate a murder suspect's papers for committal to the High Court, the prosecution told a judge yesterday.
The revelation was made by state counsel Reneetswe Rabosotho to Justice Thomas Masuku in the case of Smart Khani who wants to be discharged from custody because he has spent a long time without being tried for the alleged murder. He is accused of murdering Zimbabwean Stellah Ziteya on October 7, 2004 near Tati River in Francistown.
"Even the Magistrate's Court does not have his papers. The Registrar also does not have his papers for committal," submitted Rabosotho in despair. This prompted Masuku to say the state cannot allow a situation where a person's rights are trampled. The judge said it is almost four years since Khani was put in custody. Earlier, the accused had told the court that he was stopped from appearing for mention at the Magistrate's Court in July 2005. "I was told that the High Court would invite me for trial within 31 days. I stayed for those 31 days and even today I have not been called for trial," submitted Khani. He disclosed that he had never applied for bail pending trial. The judge told him that he could see that he had moved his application in terms of Section 133 of the Criminal Procedures and Evidence Act based on Justice Moses Chinhengo's judgment. "It always makes sense first for a person to apply for bail and see if the state opposes.
I have read many judgments of the High Court and I disagree that a person could be discharged with conditions," said Masuku. He explained that Section 133 refers to people who have not applied for bail in an ordinary way. Fortunately, he said, he had dealt with this question in Swaziland and understands it very well. "I am deeply concerned that the man has been in custody since 2004 and has not been recalled for trial. What boggles the mind is that I am dealing with 2006 and sometimes 2007 cases. There is a man in custody since 2004," Masuku stressed before seeking an assurance from Rabosotho about Khani's trial date. It was at this point when the court learnt about the missing committal papers. In the end, Khani was granted bail on condition that he deposits P1,000 and one surety for the same amount. He is required to report to Masunga police station once every two weeks on Monday until the finalisation of the trial. He must not interfere with any of the prosecution witnesses and he should attend court when required. He is required to surrender his travelling documents to Masunga police station commander and not to apply for any new ones pending the finalisation of the case.
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