30 Aug 2024

Parliament has heard that the Directorate of Public Prosecution (DPP), as a constitutional office established under the Constitution and in executing its functions, is not subject to the direction or control of any other person. 

Answering a question on Tuesday, Minister of Justice, Honourable Mr Machana Shamukuni said that meant the DPP was not answerable to anybody for actions it took in any criminal proceedings.

Hon. Shamukuni told Parliament that the offer to represent the DPP was extended to some of the best advocates in and around Johannesburg and Pretoria and in South Africa and one Advocate Gerrie Nel was readily available to take up the ‘Butterfly case’.

“Advocate Nel is vested with requisite experience and expertise in criminal law and investigation of trans-boundary organised crimes and he is currently a private practitioner with vast knowledge on issues of mutual legal assistance and alternatives to mutual legal assistance,” he explained.

He added that the DPP’s engagement of Adv. Nel was solely on the basis of his reputation as a former prosecutor and legal practitioner and not account of his relationship with the Afriforum. He said Adv. Nel was engaged as a South African private legal practitioner to follow all necessary processes to enquire from all relevant authorities in South Africa, the fate of Mutual Legal Assistance (MLA) and to also get the said authorities to act on MLA expeditiously.

“We are mindful that the said Adv. Nel is associated with the organisation known to as Afriforum as part of their private prosecution team. We however do not know the same to be providing legal services but as some kind of advocacy or pressure in South Africa,” he said.

Again, he stated that all the work done by Adv. Nel on behalf of Botswana for the public good and free of charge (pro bono).

“The understanding is that Adv. Nel will issue a free note which wil be normal fee of attorney to client as regulated by the law, for appearing in court and so far he had not issued the Attorney General Chamber with any fee not thus far,” he added.

He said given that the DPP, in exercise of functions vested on it by the Constitution of Botswana, was not subject to the direction or control of any other person, prosecution was therefore conducted when the state was of the opinion that the evidence at hand established the prima facie case against an accused person.

“The state has the right to disregard or not use any piece of evidence that believes it is irrelevant to prove the case. In this regard, the state does not preclude the suspect or accused from using the same evidence for their defence,” he said.

On other issues, he said when an individual such as one Jack Hubona was not present to be able to discuss in person or defend any issues brought against him in Parliament, it cannot be a subject of discussion, especially as it related to issues of law and had consequential damages on the integrity and reputation of person concerned.

Notwithstanding, he said the contention that Hubona be charged with perjury for manufacturing evidence was overruled by the court of Appeal following a concession by counsel for the Respondent that was improper for the court to issue such an order without affording parties an opportunity to address it.

He said where such issues was raised out of mere impulse and the Court of Appeal held that the Judge erred in raising such issues without having been raised before and issuing such order without allowing parties to address it.

“I do not know if Jako Hubona ever visited His Excellency President Dr Mokgweetsi Eric Mokgweetsi Masisi. The case has not yet been concluded as the state still await crucial evidence that it has requested from other jurisdictions and there was no basis for the state to apologies nor pay any compensation,” he said.

Mr Shamukuni further said the Court of Appeal had ruled that it was improper for the High Court to rule that Hubona and others be charged with perjury without affording them an opportunity to defend themselves.

“As stated earlier, the case has not been concluded as the state still await crucial evidence that it has requested other jurisdictions, I also do not know if the Cabinet was ever briefed about the Butterfly case and at the same time the State will never interfere with investigations,” he said.

Jwaneng-Mabutsane MP, Mr Mephato Reatile had asked the minister to state if Adv. Nel was hired or still hired by the state as its legal counsel on the ‘Butterfly case”.

Mr Reatile also wanted to know the rationale used to hire Adv. Nel since he was linked to Afriforum. He also wanted to know how much had been paid for his services and if he was still being paid by the state and how much.

He further asked the minister to state if the High Court ordered that Hubona be charged with perjury for manufacturing evidence on behalf of the state, how many years were left before his matter can be brought before court as per the Prescriptions Act. Among other things, the legislator also wanted to know about actions that were taken against other individuals who participated at various capacities in helping Hubona in fabrication of evidence.