Francistown tycoons in court over land scandal

RYDER GABATHUSE
Staff Writer | Friday August 6, 2010 00:00

The criminal case centres around suspected corrupt sale of state land in Francistown and surrounding areas, Kasane and Tatisiding. The estimated value of land that has purportedly been illegally transacted amounts to about P2, 449,800.

The suspects are principal state counsel, Moloko Mokgokong; assistant revenue collector at the department of lands in Francistown Reuben Tshule;  principal technical lands officer in Francistown; and 30 people who are mainly respected tycoons. The civil servants face about 87 counts, among them corruption, falsification of records and obtaining by false pretences. The tycoons and their businesses mainly face a common charge of corrupting a public officer.

The big case has apparently brought together some of Francistown's tycoons as they currently find themselves jointly on the wrong side of the law.

Defence attorneys include Perpetua Dube, Phazha Kgalemang, Gabriel Komboni, Morgan Moseki, Enock Mazonde, Moabi Madandume, Mishingo Jeremiah and Keitshegile Sechele. At the preliminary stage, Gaborone-based attorney, Moses Kadye was supported by all the defence lawyers in his objection against the way the charge sheet is drafted. the confusion was apparent in the way the charge sheet has been drafted and similarly the particulars. He said attorneys were bound to make applications for the correction of the situation.

'There is a misjoinder here involving all the 33 accused persons. There is no allegation in the particulars of the offences committed, the dates in which the offences had occurred alleging that the offences occurred at the same time and in similar circumstances is wrong.'

He stressed that there was no legal justification why the accused's charges could be lumped together. He felt that prejudice could arise as a result of lumping accused persons together in one charge sheet.  'Even if we were to accept when the facts are related in court, they have a tendency of influencing one another. Each case should be dealt with on its own merits,' said Kadye. He said he was making his submission on behalf of accused persons Victor Kegone Sebina and James Moffat representing a company called Bango Trading.

'I don't purport to be acting for the rest of the accused persons,' emphasised Kadye who indicated that his objection was straightforward and that it did not need to be moved to the next day. He said that he could not have come all the way from Gaborone only to be told that people were not ready to proceed with the preliminary arguments.

He was apparently irked by attorney Phazha Kgalemang who had stated that he intended to make an application but he was not ready, as he required time to lodge his objections. 'I am not ready without proper authorities as one cannot make an application of this nature out of the blue. I have met with the prosecution and we have agreed that they should not proceed with the matter,' Kgalemang said.

The arguments came about after Makati-Lesang had indicated that the chief magistrate, Peggy Madandume had recused herself from the matter on the basis that her husband is one of the defence attorneys. 'I have called you to make your objections/applications if there were any,' Makati-Lesang had earlier said.

It was then that attorney Komboni stood up and observed: 'We need to be given the other side of this matter for convenience sake'. Komboni praised Kadye for vehemently and eloquently articulating the objection. He feared that with 33 accused persons, it is going to take a long time to conclude the case and it might prove expensive to their clients. 'Should the charge sheet be allowed to pass as it is, it will have a serious prejudice against my clients who in the end might pay a lot in legal fees if the case could unnecessarily drag,' he said.

It was then that Kgalemang stood up and confirmed that he was going to raise similar points in objection as articulated by Kadye. 'A trial must be made in a fair atmosphere. I fear that the current arrangement as per the charge sheet might cause a lot of prejudice and I don't see any fairness at all,' he said.

The principal state prosecutor, Samantha Mbikiwa indicated that the state wanted a postponement to deal with legal arguments raised by some of the accused persons pertaining to the objections.

'As the state, we are not ready to respond to the objections right now. We obviously have to demonstrate to the accused persons why their charges have been bundled together and all that,' said Mbikiwa. She pointed out that the day before the case, she had the opportunity to communicate to Kgalemang on the position of the state.

'I also want to point out that it was our wish to have communicated to all the attorneys about the latest developments. Under the circumstances, we need to be given a new date to respond to the objections raised by the attorneys.'

The response seemed to rub Kadye the wrong way. 'The objection raised is on what appears right there on the charge sheet and it needs no research at all. We know the state wields a lot of power but this is not a complicated matter that could worry you at all. What answers are you going to look for from the books,' wondered Kadye who had a busy morning.

Komboni was given the floor again and seemed to be in favour of the state's response to be made there and then. 'Your worship, the disputed charge sheet was prepared in June. If my memory serves me well, the same charge is annexed in a civil case involving the same accused persons listed here,' he said.

He added that when the charge sheet was drafted, the state had everything at its disposal. 'I think if the state could be given about 30 minutes to respond to the objections, it will be okay. Allow them more time and it must be accompanied by some specific time frame.'

He indicated that the best approach would be to give the defence an opportunity to reply later.

It was then that one if the attorneys, Mboni Manyothwane strongly said: 'Can't the state be courteous enough to ensure that their response is given now. The whole Directorate of Public Prosecutions (DPP) officers can't simply look at this and proceed. It might be difficult for us even in 2011 to meet again'.

Mazonde felt that there was no way in which the magistrate could reverse her decision and indicated that it would be improper to expect any change.

In finally making her ruling, Makati-Lesang indicated that she was fully aware of the frustrations of the legal minds representing the accused.

'Heads of arguments will be filed on August 20 and defence counsels are expected to have replied within 14 days so that the case can proceed on October 21. The accused persons who would want to attend would do so of their own volition as it is not compulsory to do so,' ruled Makati-Lesang.

She encouraged the attorneys to abide by the set dates and 'be civil so that we make progress'. The land case has already started drawing a lot of people who had come to listen to the proceedings and most importantly to get a glimpse of the accused tycoons.