Citation: 2010 (1) BLR 404 (HC)
Court: High Court, Lobatse
Case No: Misca 1835 of 2007
Judge: Dingake J
Judgment Date: March 2, 2010
Counsel:
E W F- Luke II for the appellant. B Mokakangwe for the defendant.
Flynote
Constitutional law – Fundamental rights and freedoms – Breach – Redress – Constitutional damages – Violation of right to fair trial within reasonable period C of time – Delay in prosecution – Plaintiff brought to trial on charge of murder over 12 years after arrest – State offering no explanation for delay – Plaintiff awarded constitutional damages of P100 000 – Constitution of Botswana, ss 10(1), 18(1) and 18(2).
Headnote
The plaintiff claimed constitutional damages for the failure by the State to D try him within a reasonable period of time. He alleged that the delay of over 12 years from the date of his arrest to the date of commencement of his trial violated his right to be tried within a reasonable period of time, as contained in s 10(1) of the Constitution of Botswana. He was first arrested and charged with murder in February 1995. The charge was withdrawn in 1998 but he was recharged in 2004. He was brought to trial in 2007, at the conclusion of which he was acquitted. The defendant offered no explanation for the delay in the E commencement of the plaintiff’s trial.
Held: (1) Whether a particular delay was unreasonable depended on the circumstances of the case. Relevant factors included the length of the delay, the crime charged, the availability of witnesses, the efforts made to prosecute expeditiously and the availability of judges or magistrates. Busi v The State [1997] B.L.R. 69, CA at p 72E-F applied. F
(2) The withdrawal of the charge did not operate against the plaintiff. Sejammitlwa and Others v The Attorney-General and Others [2002] 2 B.L.R. 75, CA and In re Mlambo 1992 (4) SA 144 (ZS) at pp 151A-C and 151J-152A applied.
(3) A period of over 12 years qualified as an inordinate delay in bringing the plaintiff to trial.
(4) There was no explanation for why the plaintiff was not brought to trial G subsequent to his release in 1998 or earlier and the delay was accordingly unreasonable.
(5) The ‘redress’ to which an applicant was entitled for violation of his fundamental rights, in terms of s 18(1) of the Constitution of Botswana, included, where appropriate, an award of constitutional damages. Sekgabetlela v The Attorney-General and Another (Civ Case 954/07), H unreported at paras [45] and [46] followed; Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC) and Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at p 821 para 60 applied.
(6) In the present case, the nature and circumstances of the breach of the plaintiff’s constitutional rights justified his seeking to avail himself of his constitutional remedy. MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA) at p 491 paras 26-27 applied.
2010 (1) BLR p405
(7) In the present case, an appropriate award of constitutional damages was A an amount of P100 000. Merson v Cartwright and Another [2005] UKPC 38 at para 18 applied.
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