AN attempt by Advocate Mahlomola Manyokole to block his prosecution for fraud and money laundering failed last Friday after the Court of Appeal dismissed his petition. Advocate Manyokole and one of his seven co-accused, Relebohile Lesholu, approached the Court of Appeal after High Court judge Justice ’Maliepollo Makhetha refused to permanently stay their prosecution last year.
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Manyokole was first suspended and later fired as the director-general of the Directorate on Corruption and Economic Offences (DCEO) before he was dragged to court on criminal charges in 2021.
Manyokole and Lesholu were seeking a permanent stay of prosecution after the crown took 18 months without prosecuting them from the date of their first appearance in the Magistrate’s Court.
They were also complaining that the state charged them before investigations were completed, citing challenges with respect to appointment of prosecutors for the trial.
They applied for a permanent stay of prosecution before Justice Makhetha on grounds that they were denied the right to a fair trial within a reasonable time as the state had failed to furnish them with indictment, criminal docket and witness statements.
The required documents were however furnished before the stay application was heard, leading to Justice Makhetha dismissing the application on grounds that the matter had become moot.
The President of the Court of Appeal, Justice Kananelo Mosito, sitting with Chief Justice Sakoane Sakoane and Justice Moses Chinhengo, found that the period of delay was not egregious and caused no irreparable trial-related prejudice.
The Court of Appeal said the criticism that Justice Makhetha erred in deciding that the matter of the issue of supply of the documents was moot by the time the stay application was heard or finally decided cannot be faulted.
“The State explained in sufficient detail why the documents were not furnished by the time of the stay applications,” Justice Mosito said.
“That explanation is not fanciful but reflects the reality and challenges faced by small jurisdictions such as ours in dealing with many complex and serious offences against accused persons in one trial,” he said.
“There was no refusal by the state to furnish the documents.”
The court found that the state faced real challenges with regard to completion of investigations, appointment of prosecutors and associated issues including the need for thorough preparations for the trial by the appointed prosecutors.
The state, the court said, was edging towards the holding of the Pre-Trial Planning Session (PTPS), scheduled for December 12, 2022, when they lodged the stay applications in the forlorn hope that a permanent stay would be granted.
The court determined whether the delay of 18 months was so inordinate or over-lengthy as to warrant the drastic order of a permanent stay of prosecution.
It found that it cannot be said that the delay in bringing the accused to trial in this case is egregious, nor can it be said that there already had been trial-related prejudice suffered by the appellants.
“A permanent stay of prosecution is a drastic and exceptional remedy entirely unsuitable to be granted at this nascent stage of the proceedings,” Justice Mosito said.
Justice Mosito said had the appellants “not truncated the process and had allowed PTPS scheduled on 12 December 2022 to go ahead, the trial may have been completed by now, 15 months later”.
He said accused people and their lawyers must be discouraged from pursuing unmeritorious applications for permanent stay without proper regard to the complexity of charges they are facing and the availability of institutional resources.
“Although the appellants have not been successful, costs may not be visited upon them, this being essentially a criminal matter,” he said.
The court also found that the appellants themselves contributed to the delay of their prosecution.
One of the state prosecutors, ’Mamongonyo Baasi, explained the causes of the delay in submitting the docket.
She said the 24 charges “are sophisticated economic offences” committed by senior officials of the DCEO and require a high degree of attention from any would-be prosecutor.
She said the forensic report that the state largely relies on was only completed on June 20, 2022.
The lawyer initially assigned to prosecute the case withdrew from the matter and new prosecutors had to be appointed and they needed time to familiarise themselves with the voluminous documents involved.
The prosecutors had to consult with necessary witnesses including forensic experts from PriceWaterhouse & Coopers who are resident in South Africa.
Baasi denied that the charges are trumped up and asserted in strong terms that there is a prima facie case against all accused persons as disclosed in the docket.
She said the accused persons demanded the documents verbally and in writing before the investigations were completed.
During the period between May 2021 and October 2022, there had been a change of prosecutors.
Responding more directly to Manyokole’s affidavit, Baasi said the prejudice he suffered, if any, did “not outweigh that which the State would suffer if a permanent stay was granted”.
“The state undoubtedly suffers prejudice if such heinous crimes are not prosecuted in circumstances where (Manyokole) was operating within the purview of a law enforcement agency and arbitrarily used institutional power of the DCEO for self-aggrandisement,” she said.
Staff Reporter
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