Nchindo, his son Garvas, former Debswana employees Joseph Matome and Jacob Sesinyi all face 36 counts of graft. The suspects have filed an urgent application to have the main case postponed following an order by Regional Magistrate Lot Moroka that they should take their pleas today and that trial should commence on July 6.
On Friday, Dibotelo stated that the suspects should not plead before he determines the review application to be heard on July 13 and 14.
In the review application, the suspects want the court to review and set aside a court order handed down by Moroka concerning witness statements and clarity on how the offences were committed. The prosecution contends this is a ploy to delay the commencement of the trial.
Dibotelo said the review application was scheduled for hearing on the set date by consent between Nchindo's lawyers and the Directorate of Public Prosecutions (DPP) with the understanding that if there is a vacant day, it will be heard earlier. He said that subsequently, a date was available on May 28 to finalise the matter, but unfortunately, both the DPP and defence were not available to complete their arguments. He stated that the issues raised by the defence and DPP in the application to stop commencement of the trial were identical to those raised in the first review application before him.
Dibotelo said that justice demands that the criminal trial should be 'frozen'. In the review application, the suspects are alleging that their rights might be breached if trial commences before the charges against them are clarified. The prosecution is challenging the application because it says it is improperly before the court. The prosecution said the matter was not routed via the magistrate as is the practice.
Dibotelo said that if the criminal case before Moroka continues, it would be disruptive if he rules in the first application that the suspects were entitled to further particulars. "I have no doubt that if this court were to find in the first application that the applicants are entitled to further particulars and documents after the criminal trial is in progress, that would be disruptive and chaotic to the criminal trial, and would put the Administration of Justice in disrepute," said Dibotelo.
He agreed with Nchindo's lawyers that if the case resumes next month, it could compromise the suspects' right to a fair trial. "It must be borne in mind that the applicants have come to this court contending, whether rightly or wrongly, that certain constitutional rights to a fair trial are being or have been infringed and it is, therefore, right that this court should decide those issues before the criminal trial can proceed," said Dibotelo.
"It follows therefore, that the only way to proceed at this stage is to stay or postpone the criminal trial at the magistrate court until the first application has been determined and finalised by this court," he added.
