Nkate finds himself between a rock and a hard place

GREG KELEBONYE
Staff Writer | Tuesday April 20, 2010 00:00

Then he received a pat from a number of people including businessmen and one ruling party MP, who is a former minister. But things took another twist for Nkate last Friday as youthful chief state counsel, Kgosietsile Ngakaagae gave him a torrid time and called him a liar bent on misleading the court. The re-examination, essentially became a cross-examination - with defence counsel Craig Webster now and then objecting and raising questions about whose witness Nkate was. Webster got a lot of 'sit down' responses from the no-nonsense Ngakaagae. At one point Ngakaagae, who apparently took a dislike to Webster's attitude during his interjections that the state was 'talking nonsense' earlier in the multi-issue case told Webster: 'Sit down! We are equals in this court'. It waould be well over two hours before Ngakaagae could let go of Nkate, but having ensured first that the state's case was thoroughly resuscitated and the former minister went home with the spectre of possible perjury charges hovering over his head. Below we produce excerpts from the court exchanges.

Ngakaagae: You would confirm that at some point DCEC director Tymon Katlholo visited you regarding a plot?Nkate: I confirm

Ngakaagae: And you would confirm the statement that Katlholo received was in your own handwriting?Nkate: I confirm

Ngakaagae: That you signed and swore to that statement? (At this point Ngakaagae produces a document and asks Nkate to confirm if it is indeed a copy of the statement. Nkate confirms)

Ngakaagae: Do you confirm to the court that you told Katlholo at the time that the statement was true and correct to your knowledge and belief?

Nkate: It was true and correct...

Ngakaagae: Can you confirm to the court that before you became a minister you had been a legal practitioner?

Nkate: Yes

Ngakaagae: So you are a lawyer by training?

Nkate: Yes

Ngakaagae: In fact you had been a magistrate?

Nkate: Yes I was

Ngakaagae: So I trust you will be well conversant with the importance of an oath?

Nkate: Oh yes!

Ngakaagae: And you can confirm to the court that at the time you wrote the statement you were not under pressure?

Nkate: None whatsoever

Ngakaagae: Can you confirm from page five of your statement that the application that you received was an application that you understood to be a Debswana project?

Nkate: Yes

Ngakaagae: And can you confirm further that under oath, you did say to Katlholo that prior to the cabinet decision you had a meeting at Debswana to discuss the development?

Nkate: Yes

Ngakaagae: And you can confirm to  the court that you would not have made the statement to Katlholo unless you meant what you wrote down?

Nkate: Absolutely!

Ngakaagae: And you can confirm that had you any doubt, you would have first gone on to confirm the fact, because of the gravity of an oath?

Nkate: Yes

Ngakaagae: You can confirm that in your statement you made to the DCEC director you said: 'The application in respect of which I received a recommendation and proceeded to make an allocation of 70 hectares was to my mind clearly an application by the consortium which I understood was a Debswana group' is inconsistent with what you told court that Debswana had nothing to do with the application for the land that you allocated to TDC?

Nkate: That would be so

Ngakaagae: Both versions can't be true?

Nkate: They cannot both be true, but I can explain

Ngakaagae: Yes, don't worry; you will have all the time to explain. And having used the word 'clearly' there were clear facts to you that this was a Debswana project?

Nkate: Yes, it was based on my total conviction

Ngakaagae: Based on the facts....?

Nkate: As I understood it

Ngakaagae: And you would confirm that at all times TDC was Debswana company?

Nkate: That was my understanding of the situation

Ngakaagae: As informed by facts?

Nkate: As I construed them

Ngakaagae: And you will confirm Sir, that this statement having been made in 2008, way after the land allocation and knowing the controversy behind this land, you would have had ample time to verify the facts?

Nkate: The case and allocation were not my day-to-day preoccupation. If it had been brought to my attention, I would have made the necessary correction

Ngakaagae: Can you confirm that your decision to allocate was not only based on advice from your officers but also on what flowed from your meeting with Debswana?

Nkate: I was confused...thought TDC was a Debswana project

Ngakaagae: The allocation of (the) plot was a direct allocation for the reason that project was conceived to be of national importance?

Nkate: It's very easy for one to cross-reference the two. There were two projects - similar

Ngakaagae: The Gaborone 70 hectare plot was of national importance  - otherwise the applicants would have to queue like everybody else?

Nkate: Yes, but it must be borne in mind that there were two... (As Ngakaagae interrupts, defence counsel Craig Webster stands up to interject earning a 'sit down' bark from Ngakaagae. Regional Magistate Lot Moroka urges the two lawyers to play fair, likening court to golf, where one party waits its turn, and warns he will not have that 'ping-pong' type of attitude in his courtroom'. Ngakaagae accepts the reprimand but reminds the court that Craig set the cue with language when he termed the prosecution's submissions 'nonsense. 'They set the cue with language.... We're all equals here,' he stated.

Nkate: (Continues) It should be borne in mind that there were two projects, each with an 18 hole golf course and a five star hotel, promoted by the same person, I had occasion to interact with him about both projects, and when I wrote my statement, I confused the TDC project with the Debswana project that was being pursued at the time....

Ngakaagae: But the actual sequence of events is clear.... (Moroka chips in at this point, and talks of the irony that is presenting itself before court - a chief witness apparently turned something else)

Ngakaagae: The two projects were similar

Nkate: Yes

Ngakaagae: And you would confirm that you had some interaction with Mr Nchindo... can you tell us the nature and when that was?

Nkate: Can't say when, but I met with him a number of times, and yes it is clear I was privy to information about the projects before cabinet met...whether Gaborone project was a TDC project or whether there was a relation between the two I could not say.

Ngakaagae: But you didn't ask for clarity, and swore to the statement because you were not confused?

Nkate: I was of the conviction that it was the accurate position

Ngakaagae: Semantics aside, it wasn't a question of conviction, but omission?

Nkate: If you know about two similar things, you can confuse them. And these projects are years apart, and promoted by the same individual

Ngakaagae: This gentleman is a MD of Debswana and he is promoting a project that directly competes with his employer's project. Did you find that in order?

Nkate: It was not for me to decide if it was in order (Craig Wesbter interjects at  this point, complains that Ngakaagae is badgering the witness. He is overruled)

Ngakaagae: You work for BEDIA as chief executive officer, a position of trust?

Nkate: Trust and responsibility

Ngakaagae: A minister's post is of trust

Nkate: Trust and responsibility

Ngakaagae: And you were aware that government had a shareholding in Debswana. Wasn't that the case?

Nkate: It is

Ngakaagae: And you were naturally expected to blow the whistle...., for here was a MD who competes with the company that has a government shareholding?

Nkate: The first allocation was for TDC, made before the Debswana project was mooted. It could well have been they wanted to collaborate on the same plot

Ngakaagae: You are aware of conflict of interest: when a servant's interest is in competition with those of the master?

Nkate: I am

Ngakaagae: And at the time of the cabinet briefing you were aware of the Debswana project on the one hand and Nchindo's on the other?

Nkate: I was aware that Nchindo had made an undertaking, but I did not know that eight years later, there would be a similar project by Debswana. I didn't assume a conflict of interest

Ngakaagae: You are saying in so far as the two applications did not come together, there was no conflict of interest.... Even now you do not see it?

Nkate: Yes

Ngakaagae: You could enter into a business arrangement with BEDIA so long as BEDIA agreed?

Nkate: If I was going to deal in factory shells I would declare my interest to the board and let them make up their mind

Ngakaagae: Did you ask for the declaration (by Nchindo) at the cabinet meeting?

Nkate: No I did not. My mind didn't see a conflict of interest

Ngakaagae: At what point did it now occur to you that these were two different projects?

Nkate: When I looked at the exhibit

Ngakaagae: Was that after Rre Katlholo took your statement?

Nkate: Yesterday (Thursday) here in court?

Ngakaagae: Are you now telling the court that at the time you were making the statement you had not clearly applied your mind to the fact?

Nkate: I made the statement believing the facts were true

Kgosi: Simple Question; Yes or No. (Webster jumps in and argues that it should be the witness' choice how he wants to answer. Moroka advises that the court will always protect the witness if a lawyer plays unfairly. The question is fair and the witness must answer it.)

Ngakaagae: We will thither around this question until I get a satisfactory answer: Had you applied your mind to the facts?

Nkate: I had, in terms of my recollection at the time

Ngakaagae: You knew there were two tourism projects. So you would have applied your mind to the two projects at the same time?

Nkate: I applied my mind to one project at a time

Ngakaagae: So you could not have confused them? Your assertion that you confused them is false?

Nkate: The shareholding of TDC was not clear back in 1997, some nine years later there is a similar application. It is very reasonable that one can get confused about the project

Ngakaagae:  (Insists that Nkate has not answered the question) You were applying your mind to one project at a time? You could not have confused the projects. Should we record now, that you did not apply your mind to one project at a time?

Nkate: It was my responsibility to advise the President if one project should be allowed, and my responsibility to refuse or allow the other project

Ngakaagae: At the time you wrote the statement, did you apply your mind?

Nkate: I was confused as to whether the land was allocated under Debswana venture or TDC

Ngakaagae: And being confused ....you said it is 'clear'. And you would agree with me that being confused you would have verified facts before making a statement under oath?

Nkate: If I had believed that there was confusion or mix-up

Ngakaagae: Prior to writing the statement it is clear...subsequent to writing the statement you are confused. Is that your version?

Nkate sticks to his earlier argument. Ngakaagae asks him if it was clear to him at the time of making the statement that TDC is a Debswana subsidiary, but that after it is no longer clear because of the similarities. He says he mixed the two projects because of similarities.

Ngakaagae: The project in Kasane was a TDC project?

Nkate: Yes

Kgosi: That was state land in Kasane?

Nkate: Yes

Ngakaagae: Both were state land, yet you are saying there was need to have the President bless the allocation with respect to only one?

Nkate: My responsibilities were different. In the TDC it was to approve or disapprove. In terms of the other it was not routed in the same way. I was playing different roles at the various times. (Nkate asks for water, sending court into laughter. Moroka jokingly chides Ngakaagae for putting the witness in trouble with his questioning)Moroka: I think I also need water (sends the court into another round of laughter)

Ngakaagae: The first statement that you made and said is 'clear' is the correct statement?

Nkate: No it can't be true

Ngakaagae: And I put it to you that if it is not true, it is false?

Nkate: It is a clear mistake of facts

Ngakaagae: You said it is clear?

Nkate: Ok it is false

Ngakaagae: You recorded a falsity under oath?

Nkate: To the extent of my understanding of the facts

Ngakaagae: You would agree that it is a bad thing to tell a falsity under oath?

Nkate: If it is done deliberately

Ngakaagae: And I take it that at the time you were a magistrate you would take exception to that?

Nkate: Absolutely

Ngakaagae: And you agree that a court of law should be unhappy with a witness who does not apply his mind to facts before making a statement?

Nkate: I did my best and I think this court will judge me on my demeanor?

Ngakaagae: I put it to you the reason you reneged on your earlier statement was to mislead the court....you are here to mislead the court

Nkate: I have no reason to mislead this court in this or any case. I have no interest in this matter and at all times my desire is to tell what I believe to be the truth

Ngakaagae: Was the late Nchindo a friend of yours?

Nkate: He was not a friend. He was an acquaintance.The prosecution rests its case.