Solomon vs Tafa: the preview

| Friday June 6, 2008 00:00

 

Boxers are fond of scuffles before the main event. The press conference raucous may be meaningless to the untrained eye but to those steeped in the psychology of competition the skirmish is as important as the fight itself. It is said it is through that mad swirl of the boxers and their posse that one would know how the fight might unfold.

The corruption case against former Managing Director of Debswana, Louis Nchindo, and former senior members of Debswana Management Joe Matome, Jacob Sesinyi and Nchindo's son Louis Garvas Nchindo may have not started but it has really started.

Just when everyone was hoping that the proper case would unfold with the charges announced and both parties ready to go full speed then came the small, but actually very big, matter of recusal. The DPP wants to bar Collins Newman & Co from representing the accused to which the firm and the accused are not friendly to say the least.

When the two meet before Village Magistrate Lot Moroka this morning that is what they will be arguing about. The two have already been arguing through the various affidavits and replying affidavits about this matter.

PHADY GRACE SOLOMON
Deputy Director
Department of Public Prosecutions 

Integrity of the trial
The DPP wants to push the position that their role in this trail encompasses safe guarding the integrity of trial. The DPP has a direct interest in ensuring that the aforesaid trial is conducted with all fairness, professionalism, diligence and ethical rectitude in the interest of all parties affected by it and in the interest of justice, Phady Grace Solomon, DPP deputy director and head of the DPP's crack team in the case, argues in her founding affidavit.

She would argue that furthermore they have a duty to ensure the integrity of the criminal proceedings before the court and to advise the court on any ethical concerns likely to bring the administration of justice into disrepute.

She would argue that according to Common Law relating to the ethical and professional conduct of legal practitioners before the courts. A lawyer is precluded from acting in a case where there is actual or potential conflict of interest between the interests of two clients he purports to represent she would argue, adding that a lawyer is also barred against acting for a client where his/her interest and those of his/her clients might class.

The first duty of any lawyer before a court is the administration of justice. Where the practical circumstances of a lawyer conflict with his/her duty to the administration of justice the lawyer must give priority to the interests of justice and is precluded from acting for a client she would say. They would therefore argue that the law firm is ill placed to act for the accused.

Collins Newman & Co as witnesses
The DPP says it would want to call former partner David Newman, Parks Tafa and Lawrence Khupe, the latter two are currently working for the law firm. The DPP would want to explore the role of the firm regarding their work for the accused and therefore, they argue, the firm is ill-placed to meanwhile represent the accused in the case.

It further states that the reason why they initially overlooked this witness aspect of the case was because they mistakenly thought it would encroach on attorney-client privilege. 

Solomon states in her affidavit that this privilege does not extend to instructions made to attorneys by clients in the perpetuation of an offence nor to transactions by attorneys made in the pursuit of an unlawful mandate given by the client.

She maintains that the circumstances of the incorporation of Tourism Development Consortium and acquisition of Plot 55720 by TDC are major issues in the case and given that the firm had a role in both the firm is better placed to be a witness.

Furthermore the DPP argues that they would want to investigate the firm regarding this matter.

The firm would be called, according to DPP, to testify in the case. Among other questions they would be asked to explain some questionable aspects of the relationship between Debswana, TDC and the rest of the accused.

Conflict of interest
Paramount to all other arguments would be that the firm's involvement with both Debswana and TDC places it at a compromised position. My concern in this regard is that the (Collins Newman & Co) have assumed the role of defending the other respondents (TDC) inspite of the fact that the wronged person in the case (Debswana) is their other client.

Why they did not find themselves compromised as attorneys in acting for both the majority shareholder and director of (TDC) and Debswana which was likely to give rise to conflict of interest the DPP would ask.

I am concerned that notwithstanding the controversy that has since arisen over plot 55720, (Collins Newman) continue to provide legal services to TDC. (The plot) is an issue in the indictment of their client.

This is clear disregard of the fact that the rights of their client, Debswana, are also in issue, as having been violated by Louis Nchindo, TDC, (Nchindo's son), (Sesinyi) and (Matome) argues Solomon in her affidavit.

The DPP would argue that the recusal of Collins Newman & Co would help establish the integrity of the case.

PARKS BAEDZI BAAITSE TAFA
Senior Partner
Collins Newman & Company
As the first respondent in the recusal case the law firm would dig deep since their dismissal would be unhelpful to both the firm and the accused.

The Constitution
The firm and Nchindo have both submitted affidavits arguing that the DPP's request is urging for something unconstitutional. What the DPP is seeking to do, is to obtain from the Court a ruling that the first respondent not represent the accused who have elected the (the firm) respondent

What the DPP is seeking to do is to obtain from the court a ruling that (the firm) not represent the accused. This is contrary to the constitutional right of every accused person to have a legal representative of his own choice argues Tafa in his responding affidavit.

Tafa argues that the DPP is requesting is also contrary to common law which puts the responsibility on a legal practitioner to represent the client unless there is a good cause to cease to do so. He would argue that the circumstances around the case do not call for his recusal.

Jurisdiction
Collins Newman & Co contends that the matter falls outside the jurisdiction of the court according to the Magistrates Court Act. The present application is not of a kind this court is empowered to determine, argues Tafa. According to Tafa this case is not one case with the other one and should be brought before a specific court and since he maintains it is civil in nature, he argues that it should accordingly be brought before the High Court. They would argue that this application be dismissed on this reason; that it is outside of the jurisdiction of the Magistrate Court.

Furthermore the firm would argue that the premises for the arguments are not factual and specific, nor are they linked to any evidence of improper behaviour on the part of (Collins Newman & Co) but rather are theoretical in nature.

Tafa would deny that his firm acted in any unprofessional and unethical behaviour. Furthermore they argue that even if they were found to have done so, it should not necessarily follow that the court should recuse them.

They however also argue that it may be actually a matter of the Botswana Law Society to investigate and punish any such professional misconduct if at all it occurred. The DPP has ...failed to justify...that the only way of safeguarding the future integrity of the criminal trial is through the removal of (Collins Newman & Company) argues Tafa.

Witnesses
Collins Newman & Co will not agree to be a witness in the case, and they argue, even if one of their attorneys would do so the cross-examination would not be done by DPP.

Tafa rules out the possibility of him or any of his attorneys being witnesses. He says for the DPP to say that it will call his firm's attorneys is unrealistic, and he seems to show a disdain for the implicit sureness.

Conflict of interest
Tafa argues that there is no conflict of interest between Debswana and TDC. He argues that every criminal case is between the state and the accused and therefore Debswana could not be seen as a party to the criminal trial, and neither is the company a complainant in the criminal case. Accordingly no questions of conflict arise, he says.

Since Collins Newman & Co has no interest in the criminal trial other than in its capacity as legal representative (for the accused) it follows that no conflict arises between (the firm) and the interest of justice argues Tafa. When the two face-off this morning, it will be but a precursor to a long and bruising legal tussle.