Forcing appeal against my wish is wrong, oppressive – Morupisi
Mpho Mokwape | Tuesday July 2, 2024 08:59
Morupisi, who last week was compelled by the Court of Appeal (CoA) to continue with his appeal despite his wishes to withdraw, says he no longer has the financial muscle to continue with his appeal and that any court rule that forces him to do so is a danger to litigants. “I state that any rule of court which has the effect of forcing an appellant to continue with his appeal against his will is not only wrong, oppressive and unjust but is a danger to litigants’ enjoyment of their right to appeal,” he said. The former Permanent Secretary to the President (PSP) said if that rule exists then it is essentially rendering litigants’ rights to appeal useless as they will be scared to appeal lest their sentence is enhanced. In a new founding affidavit accompanying a notice of motion filed on June 21, 2021, Morupisi has stated that he has incurred huge sums of money in legal fees, which is the main reason he has decided to cut his losses and withdraw his appeal.
The former PSP who is seeking leave to withdraw his appeal after his appeal withdrawal was struck out for being wrongly before court on Tuesday sought the appeal to be postponed pending the determination for leave to withdraw the appeal. In his affidavit, Morupisi has explained that he has incurred large sums of money in legal fees in the criminal case matter and others associated with it especially now that he is a pensioner, after his employment came to an end in February 2020. “My employment came to an end in February 2020 and I am now a pensioner with a greatly diminished ability to finance legal battles hence my decision to withdraw this appeal,” he said. He further pointed out that the Land Cruiser, being the subject of his litigation which was seized during investigation by the state, he has fully paid for it but has never enjoyed it. Morupisi stated that as a matter of fact, he has cumulatively spent over P2 million in the case on payment of the said vehicle, court fees, legal fees and has therefore decided to cut his losses by withdrawing the appeal. “Given the financial hardship I have to endure on account of this case and associated cases, I am no longer in a position to sufficiently and adequately prosecute the appeal,” Morupisi said.
The BPF chairperson argued that to compel him to prosecute an appeal, which he is no longer interested in and in respect of which he no longer has the financial muscle to handle, will be a tragic violation of his rights. He argued that he is entitled to withdraw the appeal because no argument on the appeal has been heard and noted that his application should succeed because the court has not yet taken a view that the case is a proper case where it should exercise its power to vary the sentence. “This determination can only properly and judiciously be made after a court has heard the parties and dismissed my appeal on conviction and to say otherwise at this point will mean that the court would have prejudged the matter before allowing the appellant to motivate the basis of his appeal against conviction,” he said. Morupisi explained that the question of sentence is not a matter properly before court as there is no competent appeal filed on sentence either by him or the state. He emphasised that since the CoA is a creature of statute, being the CoA Act and in terms of the Act, the CoA is not entitled to deal with the issue of sentence when no one has appealed against the sentence. On the pattern of elections, Morupisi cried that he is tired of his case coming up every election year. Detailing how he noticed the pattern, the former PSP started by referencing the beginning of his legal woes that on or around September 2019 about two months before General Election, he and his wife were dragged before court on corruption charges. He said thereafter, it has been five years in which he has been in and out of court on the same matter and another closely related to it being a forfeiture application by the state.
Morupisi explained that although he filed his appeal on November 30, 2022 and the record was ready but for the small portion dealing with submissions in mitigation and sentence, there were curious events surrounding the whereabouts of the record of proceedings. “Several attempts were made by my attorneys of record on my instructions to track the record of proceedings. I was advised that the record has not been transmitted to the CoA in time and no good reason was proffered for that. It would appear that the record got to be ready at a point when the Court of Appeal can only hear my appeal in the build up to another General election expected to be held in October 2024,” he said. He said his appeal was called up in the January 2024 session of the court and was scheduled to be heard in February 2024, about eight months to the General Election. “I then filed a notice of withdrawal of my appeal before the appeal could be heard on February 2024 and I believed that the appeal had been withdrawn and there would be no need to worry about going to court again. To my surprise, this court issued a notice that my appeal is coming up for hearing,” he said.
Morupisi stated that he was taken back because he thought that the effect of filing a notice of withdrawal sufficiently disposes the appeal and that on the day his attorney was advised to attend court for his appeal, the respondent filed a notice opposing the withdrawal of the appeal. Morupisi further explained that on February 2, 2024, he was in court and there was a robust engagement between his attorney and the court on whether or not there was an appeal pending before court. He revealed that after a back-and-forth engagement, his attorney was given an opportunity to file written submission to address the question whether the appeal has been property withdrawn and the matter was postponed and about four months later he was advised that the court was ready to deliver a ruling on my matter on June 19, 2024 where his application was struck out. In conclusion the BPF chairman pointed out that he is tired of his case coming up every election year and that he wants to withdraw hence his instruction to the lawyer to withdraw it. Meanwhile in the current matter, the State is expected to respond by today (Friday) and Morupisi by July 3 and arguments scheduled for July 5, 2024.