Moroka to rule on 'case to answer'

Staff Writer | Wednesday August 25, 2010 00:00

 

Moroka, the judicial officer who in Prison Street is known as 'The Hanging Judge', says he will deliver a ruling on Thursday morning.

Yesterday morning, Moroka listened to Advocate Craig Webster as he muckraked and mopped up in a technical stage otherwise known as 'replying to the prosecution's submissions of 'no case to answer'.

He was going to have the last word without any challenge from the prosecution.

In his submissions, Webster talked a lot about sequence and how the manner in which events follow each other, is critical in determining the case.

In his reply, he came across as a slave to sequence and chronology.

Counts One and Two: Giving false information to a person employed in the public service Webster said Prosecutor, Matlhogonolo Phuthego, had asked in his submission, to whom the allocation of Plot 55720 was made, to which he responded that the answer to this question is not difficult because the plot was allocated to Tourism Development Consortium.

In the rhetorical question there was a suggestion that a plot can never be allocated to a non-existing entity because TDC was not incorporated at the time when the allocation was made by the then Minister of Lands and Housing, Jacob Nkate.

Webster found this view erroneous since allocation is not a contract, saying the contract only arises when a transfer is made.

Webster argued that the charge in Counts One and Two is that former president, Festus Mogae, and his cabinet, were misled.

Further, these counts cannot be proven because presentations to both President Mogae and his cabinet took place in December 21, 2000 and January 2002, while the allocation had been made on July 11, 2000.

He said the state had failed to prove that there was misrepresentation. Webster said the presentations that were made after the allocations had no bearing because the allocation was now 'a fait accompli' or a completed event.

Count ThreeThis count was withdrawn at the start of trial.

Count Four of forgeryIn the count dealing with forgery, Webster said other than the emotive statement that Matome was the mastermind of everything, the prosecution ran short of supplying evidence to prove the allegation.

He said the prosecution failed to address itself to the elements of the offence, which, according to his previous submission, will be to prove that the accused made the document, and that the document was false. Also, that when the accused made the false document, he did so with the intention to defraud or deceive. He said from the evidence adduced this was absent.

Count Five: Obtaining a title deed by false pretencesThe advocate argued that from the evidence that was led in court there is nothing to suggest that the title deed was registered by any false pretence. He said evidence from all the officials shows that a proper and normal procedure was followed in registering the title.

He told the court that the TDC was a lawful entity. Webster underscored the fact that the prosecution had not at any stage sought any review on the allocation and award of ownership. Reacting to the submission made by the prosecution - that in the event that the court acquits - it should take the plot so that it reverts to the state.

He said the application was erroneous and it should not have be made at that stage. He said if the prosecution wants to make that application, they should make it separately, and the defence will oppose.

Counts Six and Seven on 'conspiracy'Webster said the prosecution failed to argue or present any evidence that proves conspiracy. Relying on a judgement handed down by former Chief Justice, Livesey Luke, the prosecution argued that there need not have been a physical meeting in order for conspiracy to be effected. Webster said, notwithstanding the argument, the element of agreement was still fundamental and he concluded that the state has failed to show that the accused agreed to any arrangement.

 'The prosecution says the tender was rigged. On what evidence? He argued that the late Nchindo's offer to buy Plot 3084 was fair and cannot be said to have affected the market price.

Count Eight of 'receiving unlawful property'Once again, the advocate rapped the prosecution on the nails for failing to address themselves to the elements of the offence. He said other than saying that Nchindo was the dominus or 'god', and that his mind was that of the company, Gloconda, that he transferred the property to them does not prove that the title deed was unlawfully obtained.

Count Nine: Stealing by servantWebster said the prosecution alleged conflict of interest and breach of trust by Matome and the late Nchindo. 'Where is the evidence? He said no evidence in court to prove theft. He said all that is known is that Debswana paid the sum of P99, 650 for transfer of a bond. In their submission, the prosecution had said that according to the act, Nchindo, as the purchaser, has to pay the transfer duty but in this instance the duty was paid by Debswana, a conduct which they argued, constitutes theft.

Webster said the act does not prevent Nchindo from entering into any arrangement with anyone to pay the transfer bond. 'The act does not say Nchindo has to take money from his bank account and pay. He can make an arrangement to pay even if it is by somebody else'.

Count 10: Cheating on public revenueThe prosecution had argued that instead of Nchindo paying the transfer duty after getting property from Debswana, and then transferring it to Gloconda, who were also liable to pay, he unlawfully evaded the process and robbed the treasury of the revenue.

Webster countered that there was only one sale and therefore only one transfer was to be made. He said there is nothing in the act that prevented Nchindo from transferring his property to his nominee, in this case his property company.'The fiscus was not robbed of anything,' he concluded.