DCEC Fails In Bid Against Phiri
Monkagedi Gaothobogwe | Monday April 10, 2017 13:53
In one of their many reasons advanced before Justice Michael Leburu to freeze the Khato Civils Botswana accounts pending the outcome of the appeal, the prosecution had reasoned that the High Court had erred in finding Simbi Phiri innocent until proven guilty amongst others.
According to the prosecution, presumption of innocence does not apply in this particular case and that the Judge should not have raised it.
Quashing the prosecution’s argument, Justice Leburu said on Friday that the presumption of innocence lies at the pith of criminal jurisprudence and due process and that it is a hallowed principle ensconced in the supreme law.
Quoting from the constitution of Botswana, Justice Leburu said every person who is charged with a criminal offence shall be presumed to be innocent until proven guilty.
Leburu further said even the law on the proceeds and instruments of crime makes provision for access to restrained funds in order to pay reasonable legal and business expense.
The Judge further said the law recognises that even during investigations, the rights of the investigated, namely constitutional right to legal representation and a fair trial are not compromised and impaired.
Phiri has not been charged for any offence but the DCEC is investigating money laundering after claims that Phiri had under declared some funds when they were transported from South Africa, where his businesses are based, in US dollars, into a local bank.
However during earlier court appearances evidence by the defence showed that the funds were not proceeds of crime and that they were lawfully transacted from the South Africa, a finding that caused Justice Leburu to resist restraining the owner from accessing the funds.
“The presumption of innocence is sacrosanct and a hallowed principle of legality and cannot be overlooked in matters of criminal nature, particularly during pre-trial proceedings.”
Amongst others the prosecution had also argued that Khato Civils Botswana’s accounts can be frozen since they can use their heavy plant machinery to finance their company needs including paying workers.
However Justice Leburu showed the prosecution that they lacked proper understanding and interpretation of the word, property, adding that such interpretation will result in absurdity that could see workers being paid with equipment or the company having to pawn equipment in order to raise cash for operations, paying of workers and legal fees.
Justice Leburu further said the word property can only refer to funds and nothing else, adding that Khato Civils Botswana had no other funds outside the restrained funds.
The prosecution also failed in challenging the legal expenses for Khato Civils Botswana in this case, after they approached the court with what they said was proof that only P120,375.10 had been paid to the company’s lawyers, while P500,000 had been awarded as a once off payment for the company’s legal expenses.
However, the court found that on the contrary the amount quoted by the prosecution as the legal expenses of Khato was wrong.
The Judge had estimated Khato Civils Botswana legal expenses at P500,000 although Khato Civils Botswana put it around P1.2million to P2 million.
In view of the protracted nature of the case that had been to two High Court Judges, the Court of Appeal, as well as the numerous appearances at those courts, Justice Leburu said it was clear the legal costs for Khato Civils Botswana will be higher than the P120,375.10.
Justice Leburu added that the seniority of the attorneys involved and the fact that this matter is far from over, also make Khato Civils Botswana legal costs estimate reasonable.