Ditshwanelo

Today 29 October 1999, Judge Reynolds informed us of his decisions on the issues raised by the legal representatives of DITSHWANELO and Mr Maauwe and Mr Motswetla. The full judgment will be available on 8 November 1999.

Advocate Spilg, Professor Advocate Unterhalter and Attorney Kgafela had raised three issues in the previous hearing in October to show that the applicants had not been afforded fair hearings as was their constitutional rights. They had stated:
The pro-deo counsel assigned to them were incompetent, and/ or did not represent them adequately or properly;
The applicants did not understand the proceedings properly as they were at times in languages with which they were not fully conversant;

A letter Mr Maauwe and Motswetla had written to the registrar of the Court had not been acted upon at all and their requests never addressed and the letter was never seen by the Court of Appeal.

Judge Reynolds dealt first with the third issue of the letter and expressed his view that this letter should undoubtedly have been placed before the Appeal Court. The failure to do so amounts to a serious irregularity that effectively deprived the applicants of their right to a fair hearing.

For this reason alone the applicants request for the setting aside of their convictions and sentences and for a new trial succeeds.

On the other two issues of the inadequacies of the pro deo counsel and the interpreters Judge Reynolds decided that it is desirable and necessary to hear the evidence from the persons concerned and not to rely on written presentations from both the State and DITSHWANELO, Mr Maauwe and Motswetla and their witnesses.

In regard of the issue of the letter to the Court of Appeal was therefore decided that Mr Maauwe and Mr Motswetla were not afforded a fair hearing as is required by sections three and ten of the Constitution of Botswana and a new trial is ordered.

The Attorney General has the right to decide on the nature of the charges that may be brought and his right to decline to prosecute at all. No order of costs was made.

The proceedings were translated into Secherechere to Mr Maauwe and Mr Motswetla as the Judge spoke.

DITSHWANELO- the Botswana Centre for Human Rights is encouraged by the judgment and grateful that these two men are no longer under the sentence of death. The declaration of a mistrial again strengthens.