The application for a stay of execution resumed in the High Court in Lobatse today. The applicants legal team was led by Advocate Brian Spilg while the State was led by the Attorney General Phandu Skelemani.

DITSHWANELO- The Botswana Centre for Human Rights had previously won on the question of whether it had locus standi( the right to take a matter to court) in a ruling handed down last month.

After initial discussion on outstanding affidavits Advocate Spilg handed in his heads of argument.

However, Judge Reynolds insisted that these heads of argument be translated to the two men Maauwe and Motswetla, but this proved to be a laborious process as they had to be translated from English to Setswana and then to Secherechere the dialect spoken by the two men.The matter was settled by Advocate Spilg giving the Judge an undertaking that he would have the arguments translated and explained to the two men before the court commenced on the following day.

Spilg argued that the two men, had not been provided with adequate representation and that their two pro deo lawyers did not adequately consult with them.

Baera one of the pro deo counsel, has not responded and therefore confirmed that he had not consulted his client. Furusa the other pro deo lawyer has responded but as Advocate Spilg pointed out to the court he has responded in such a way as to call his credibility into severe question.

Spilg presented to the court inconsistencies, errors and contradictions in Furusa’s response, so much so, that Spilg told the court that Furusa’s " credibility lies in tatters and he can not be believed"

Spilg contended that if the Court of Appeal had been aware of these facts it would have directed a mistrial. Spilg also argued on the inadequacy of interpretation and translation provided during the interrogation process, the court preparation and the case itself.

After the lunch adjournment Advocate Spilg continued his argument and later in the afternoon the Attorney General commenced his response. He emphasised to the court that his heads of arguments were based his anticipation of the applicants’ case and not on the substantive issues contained in the heads of argument, since he had not seen them prior to their presentation in court. He told the court that he utterly rejected any suggestion or inference that the system of law and justice in Botswana was defective as this was tantamount to saying there had been no justice in Botswana since independence.

However, the Attorney General did concede that irregularities may be identified on a case to case basis and emphasized that the system must not be confused with the details of a particular case. He said that the Judge must determine if any alleged irregularities were so, and only then could the court embark on an inquiry into its effects.

On the argument relating to interpretation and translation the Attorney General dismissed this as being "utterly nonsensical" and insisted that the two men, have a thorough knowledge and understanding of Setswana and Ikalanga

Just before Judge Reynolds took the adjournment for the day the Attorney General indicated that the lack of consultation, if proved, is sufficient to vitiate and make the proceedings a nullity.

It was on this note that the hearing was adjourned and is to continue tomorrow.

4 October 1999
Gaborone