Prosecution wants Nchindo's plot repossessed

Staff Writer | Tuesday August 24, 2010 00:00

In the morning Advocate Craig Webster, acting for Joe Matome, Gloconda and Louis Garvas Nchindo meticulously delivered his submissions of no case to answer captured in a 100 pages of written heads of argument.

His war cry was simple; the defence have come up with voluminous charges but failed to produce any evidence.His conclusion; any reasonable person ought to discharge and acquit. Simply put, he wanted his men to walk.

At lunch when court adjourned there was a feeling that the soft spoken advocate could have turned the screws on the prosecution. The view amongst many was that he punched holes in the prosecution's case.

When court resumed in the afternoon the case was interestingly poised for a riveting affair. Will the prosecution pluck the holes opened by Advocate Webster? The prosecution adopted a double pronged strategy to deal with the morning destruction.

Prosecutor Matlhogonolo Phuthego dealt with 1,2, 4 and 5-counts relating to giving false information to a person employed in the civil service, forgery, obtaining by false pretence.

In his morning submissions, Advocate Webster had argued that the first two counts show that Matome had knowingly given evidence to Former President Festus Mogae to eventually support allocation of Plot 55720 to Tourism Development Consortium. He submitted that the evidence in court shows that the presentation to President Mogae and cabinet took place after the allocation had been made and could not have influenced the allocation.

He said although Nkate's credibility had been challenged his evidence was that when he allocated the plot to TDC he was not influenced by the president or any member of the cabinet. This he explained, was critical in the determination of the case as the allegation made by the prosecution was not supported by any evidence.  There was a point when the submissions became pedantic. Court was invited into a lesson on definite article 'the' and indefinite articles'a or an'. Webster argued that in the presentations to both cabinet and the former president there was no mention of the Tourism Development Consortium. Webster said there was a distinction between 'a 'Tourism Development Consotium and 'the' Tourism Development Consortium PTY LTD. In his submission Phuthego submitted that the two were used interchangeably and they referred to the same thing. Phuthego said every time TDC was used without PTY LTD it was used in initial caps suggesting reference to a company and not an idea. Phuthego said at the time when the allocation was made TDC did not exist. 'To whom was the allocation made? An allocation of land cannot be made to a non-existent entity. Allocation of land is a contract,' he said.

Phuthego said the prosecution had never suggested that the former president played a part in the allocation but contended that he supported the allocation on a misrepresentation that TDC was the Debswana vehicle for diversification. Phuthego told court that Mogae, in his evidence, had said that had he known that the plot allocated to TDC was to be used by Nchindo and not Debswana he would have reversed the allocation which was done by a minister on his delegated powers. According to Phuthego the fact that Matome responded to official ministerial correspondence using an official Debswana letter head and even attached a map of Plot 55720 was telling. On the count relating to forgery, Phuthego said TDC was formed by Debswana employees and the directorship was only changed to Nchindo and Matome after an offer was made by the deeds registry TDC.

Subsequently, Matome and Nchindo forged a company resolution meeting which never took place. He said while they claimed that they had been directors of TDC it was known that this was not true because at this time the two were not yet directors of the said company.

At the end of his submission Phuthego said even if the accused are acquitted his appeal was for the court to exercise its powers and ensure that the land is taken back to its rightful owner-the state, because it would have been obtained unlawfully. When he rose to make his submissions, Prosecutor Ngakaagae associated himself with the view taken by Phuthego that even in the event of an acquittal the plot should revert to its rightful owner.

Ngakaagae, addressing the charge of conspiracy to defraud submitted that any rigging of a tender is unlawful and he submitted that this is a principle that should be applied on this count. He relied on a letter that was found on Matome's computer ostensibly applying for the late Louis Nchindo to bid for Debswana Plot 3084 which was eventually won by Nchindo out-bidding an external bidder by what he called a suspicious P2,500. Ngakaagae said the market price of the property was affected by Nchindo's irregular bid after the bids were opened.

He quashed the contention made by Advocate Webster that there could not have been a conspiracy because as of July 2002, Gloconda did not exist as a company. Ngakaagae said in the charge they did not specifically say July 2002 but used the phrase 'in or about July 2002', which he submitted covers September 2002 when Gloconda came into being.

Ngakaagae further submitted that the state was robbed of revenue when the late Louis Nchindo purchased Plot 3084 and directly transferred it to Gloconda. He said the law demanded that he should have first paid transfer duty as the buyer but he did not.

'In this case transfer duty was paid by the seller (Debswana) under the instruction of the buyer (Nchindo).Debswana has been permanently deprived of P99,650 which it paid in transfer duty.' He said Gloconda through its director, the late Louis Nchindo devised a strategy to cheat the fiscus of transfer duty revenue. The state said during the submission of no case to answer they were not expected to prove their case beyond any reasonable doubt but merely to show that they have some evidence to show that the accused have a case to answer and they submitted that they have demonstrated that there is a case.

The defence is expected to reply today.