Sunday Standard Editor Outsa Mokone breathed a sigh of relief as he got a hollow victory on his appeal against the unlawful arrest and appealing to court to repeal Section 50 and 51of the Penal Code. A panel of five judges agreed with Mokone’s attorney Dick Bayford that the warrant of arrest was invalid and unlawful as it was not properly applied for by Assistant Commissioner of Police Kabo Marage and issued by the Broadhurst Magistrate on September 2, 2014. CoA stated that the applicant failed in his evidence to set out any basis upon which it could be inferred that the Magistrate acted Mala fides in issuing the warrant. The CoA in their review found that the commissioned police officer did not rely on any information on oath but on information otherwise obtained and that the police officer involved did not himself or herself entertain bona fide suspicion that the person against whom the warrant was issued had committed the alleged crime, but that for instance, he or she acted on the instructions of others. “That the suspicion entertained by the police officer was not based on grounds which were objectively reasonable,” reads the judgement. The court reasoned that Assistant Police Commissioner Marage failed to tell the court he had suspicion that Mokone was guilty of sedition and on what grounds. “What I find significant is that even the Commissioner does not say in his affidavit that, when he gave instructions that a warrant for the appellant’s arrest should be obtained, he did so because he suspected that the appellant was guilty of sedition,” reads the judgement. On the constitutionality of Sections 50 and 51 of the Penal Code, in which Mokone argued that it was ultra vires (beyond the powers) to Section 12 of the Constitution, the CoA dismissed the appeal. “Unlike the court aquo, I therefore find it inappropriate to consider the constitutionality of the challenged sections of the criminal code in this case. The practical effect on the appellant remains the same in that his constitutional challenge must fail. Hence the appeal against the part of the order of the court a quo must fail,” reads the judgement.
In its reasoning, CoA argued that the constitutional challenge was brought as part of the attack on the validity of the warrant. In his argument Bayford argued that the CoA should consider the constitutionality of Sections 50 and 51 because criminal charges of sedition have in the interim been filed against his client and in its response, CoA stated that the State is unlikely to proceed with the charge. “The State is unlikely to proceed with the sedition charge because on the face of it, this charge is time barred by Section 52(1) of the Penal Code which provides in no uncertain terms that: No prosecution for an offence under Section 51 shall begin except within six months after the offence committed,” it reads. Should the State, decide to proceed with the charge, the CoA says, the appellant could raise Section 52(1) as a defence. If again the State proceeds with the charges, it will give Mokone an opportunity to raise the constitutionality of Section 50 and 51 in the trial court.
“Should that happen, that court would again be bound to determine at the outset whether the matter can be decided on its merits before consideration is given to the constitutional challenge,” reasoned the CoA judges. Mokone also appealed that his constitutional rights to legal representation were infringed as he was refused access to his attorney by the Station Commander of Broadhurst Police Station where he was detained at the time. This was dismissed by the court on the basis that though access to his lawyers was delayed he was nonetheless granted to see them.
“The appellant had access to his legal representatives until late afternoon. They found priority in buying chicken rather than getting on with preparing application or at least to get a power of attorney from him,” stated CoA.
The CoA judges made a stern warning to the members of the media that there can be no justification for the publication of untruths. “Members of the press should not be left with the impression that they have license to do so. In this regard, sight should not be lost of the powerful position of the press and the tendency amongst large sections of the community to accept what they read in the newspapers as true,” they warned. In an interview after the judgement, Mokone said that it was hollow victory as section 50 and 51 of the Penal Code is still in effect. “It was never a personal matter but for the freedom of expression and my freedom came at the expense of the freedom of expression,” said the relieved Mokone. Mokone was arrested after his paper published a story in August 2014 headlined ‘President hit in car accident while driving alone at night’. The author of the story, Edgar Tsimane, has since fled the country and sought asylum in South Africa after allegedly fearing for his life following a tip-off that state security agents were looking for him.