Of the accused, the defence and 'His Worship'

| Tuesday June 17, 2008 00:00

 

It is Friday morning at the village magistrate court. Security is tight, commotion rocks the courtroom, and legal arguments are beyond reproach. By close of business, Gaborone Village Chief Magistrate Lot Moroka describes the day as a 'bitter-sweet day'.

There is hardly any parking space as the accused prepare for the second mention.

The accused Jabulani Johnson, Norman Maja, Aaron Babolele, Lebogang Kaisara, David Tumagole, Patrick Cole, Clement Molefe, Otsile Mosarwe, Jenamo Nfana, Bushi Nthibo, who are accused of stealing P17 million from CMS are here to get bail, if things go their way.

On the first count the accused are alleged to have obtained P 3, 797, 305.42 by pretending that Mogoaduba Venture Holdings Pty Ltd. had sold and delivered pharmaceutical drugs to CMS of the Ministry of Health. They are alleged to have induced the Bank of Botswana (BoB) to transfer the said amount into Mogoaduba's account, Number 420232862, at the Menlyn Branch of Standard Bank in Pretoria, South Africa.

On the second count, the men are alleged to have defrauded the Botswana government of P 6, 616, 687.87 by pretending that Senamo General Trading Company had sold and delivered pharmaceutical drugs worth the said amount to CMS; causing  Bank of Botswana to transfer the said amount into Senamo's account at ABSA Bank in South Africa.

On the third count, they are alleged to have defrauded government of P 6, 616, 687.85 by pretending that USASA Construction and General Trading Company had sold and delivered pharmaceutical drugs. The accused collectively face three charges of obtaining by false pretences.

Garbed in their paramilitary attire, members of the Special Support Group (SSG) sit outside and surround the court building as the suspects made their way into Moroka's courtroom No. 4. A family member trying to give a can of coke drink to one of the accused before court proceedings begin gets a reprimand from an officer of the serious crime squad who is closely guarding the accused.

The court's sitting arrangement has to be adjusted to suit the accused, the court interpreter gets to work and provides extra chairs and a bench for the accused in the dock.

Some extra chairs are provided to accommodate the six defence lawyers who are waiting for the prosecution team's DPP deputy director Phadi Solomon and principal prosecution counsels Merapelo Mokgosi and Priscilla Israel.

Leading the prosecution case for the day, Israel submits that the purpose of the mention is to update the court on the progress of investigations and pleads for the accused persons to be remanded in custody. She is of the view that the state had the right to investigate.

She refers Moroka to an affidavit filed by investigating officer Ikaneng Thebe stating that if released, the accused could interfere with police investigations.

Israel says that the state has been given the green light to investigate in South Africa since the money involved had already been deposited in separate accounts in South Africa. She states that while government had frozen the accounts, already some people were making efforts to have the money unfrozen.

'It is our submission that the accused persons be remanded in custody pending investigations,' says Israel.

However, Israel's submissions are watered down by Johnson and Babolele's lawyer Joao Salbany, who argues that the state has failed to sufficiently state the need for a further remand for his clients. He attacks the affidavit from the investigating officer saying that the document is vague with a lot of hear say evidence.

'The mere fact that a document has been filed does not mean it's a basis for a further remand', he argues. He contends that the primary purpose of bail is to secure attendance of the accused person.

He says he wonders why the court and the defence are being kept in the dark about the progress of the investigations. Salbany argues that the accused should be free men atleast by today since the 14 days of remand as ordered by Moroka has expired. Moroka listens attentively.

Kaisara and Maja's lawyer Thebeyame Kalake also follows Salbany's reasoning.  He argues that the state has not shown evidence that his clients are not entitled to their liberty.

He shoots down the state's opposition to the bail application for his clients arguing that the state could not justify why the accused should not be given bail and how they will interfere with investigations. He urges the court not to allow opposition to bail application on generalised terms.

Citing numerous cases, Kalake states that the prosecution has failed to show evidence why it believes the accused will abscond if granted bail.

'It is our humble view that this court has powers to set appropriate bail conditions to safe guard the interest of the state', argues Kalake.

Taking from Kalake, Duma Boko who is acting for Tumagole and also representing lawyer Unoda Mack's client Bushy Nthibo, argues that the state's affidavit must be struck off because its averments do not have the necessary supporting documents.

He is of the view that the prosecution has miserably failed to show why his clients must be remanded in custody. He says that an allegation and suspicion do not necessarily warrant a remand.

'Is it being suggested that the accused person hold that evidence?'asks Boko.

He says that the DPP should not be allowed to speak indefinite words 'The state cannot merely arrest in order to investigate', arguing that there was a dangerous misunderstanding of the law. He says the state had opted to use fizzle words to suggest that the case was complex and that the investigations were 'transnational'. Boko complains before Moroka that the police had tortured his client Tumagole by pushing an ice block through his rectum.

He accuses the state of wanting to keep the accused inorder to subject them to more torturing.

For their part, Dick Bayford and Tebogo Sebego, for Molefe and Cole cross-examined Molefe to prove to the court that he is a citizen of Botswana and is willing to accommodate his friend Cole, a non-citizen. Bayford submits that if granted bail, his clients would surrender themselves to the bail conditions as required by court.

He dismisses the prosecution's concern that Cole should not be offered bail because he is a  foreigner.

'We submit that the argument is supercilious', arguing that Molefe, had testified to accommodate Cole if he is granted bail.

Lore Morapedi, for Mosarwe, submits that the court was not bound by sentiment but was a court of law, adding that the prosecution had to prove why the accused should not be admitted to bail.

Busang Manewe, acting for Mfana, argues that he holds the views already stated by other lawyers in the defence team. He says that the state's affidavit is merely peripheral and does not say any prejudice that the state is likely to suffer if the accused were granted bail.

Manewe argues that he alignes himself with words of wisdom as echoed by Salbany, Boko, Bayford and other defence lawyers.

'We submit that the court needs to dwell more on issues of whether there is reason for continued remand', he says.

Moroka will deliver judgement tomorrow.