Stalemate

BAME PIET
Staff Writer | Monday February 1, 2010 00:00

 

Nchindo , Tourism Development Consortium (Pty) Ltd, Garvas Nchindo , Joseph Matome, Golconda Holdings, and Jacob Sesinyi successfully challenged a decision by Village Chief Magistrate, Lot Moroka to turn down their request for further particulars on the charges they are facing. They argued that the denial for further particulars and documentation was going to deny them a fair trial.

The Court of Appeal agreed with the Nchindo defence team that the orders made by the magistrate precluded them from having a fair trial. He said that the state attorneys stated that they had furnished the accused persons with all relevant information in the over 1,000 documents furnished to the defence team. The prosecution argued that the documentation was more than enough for the defence and that what they were demanding was unlawful. However, the judges felt that the prosecution's contention that the further particularity sought by the appellants was not sanctioned by any written law, or procedure, was untenable. 'It is of fundamental importance, in my view, to recognise at the outset that the appellants' entitlement to the relief sought needs to be tested against section 10 (1) and (2) of the Constitution which guarantees a fair hearing,' the judges said.

The appeal court emphasised the importance of fairness to the accused persons and their entitlement to further particulars in addition to the information contained in the charge sheet. They said that the accused persons were entitled to replies to certain of the further particulars they requested in order to prepare for their defence at the trial.

The court also gave the accused persons an opportunity to consult with state witnesses Justice Newman and Nicolas Oppenheimer. He said the refusal to grant the accused persons this opportunity was unconstitutional. The prosecution was also ordered to furnish the accused persons with a list of the witnesses the state intends to call at trial. The prosecution was ordered to pay costs.

In a different case in which the Nchindo team was challenging a restraining order barring him from developing his controversial plot in Gaborone North, pending the outcome of criminal proceedings against him, the court ruled in favour of the state. 'If successful, the challenge would have far-reaching consequences. On the one hand, the system of restraining orders provided for in the Proceedings of Serious Crimes Act would be invalidated and it is difficult to envisage any other such system which could validly take its place,' the judges found out.  They said that as a result the effectiveness of confiscation orders would be seriously, 'perhaps fatally', undermined and the purposes of the PSCA defeated. 'That would not be in the public interest,' they said.
There was no order for costs.

The two cases emanate from a case in which Nchindo and others are facing criminal charges at the Village Magistrate's Court in Gaborone. The trial has been delayed due to some practices that the defence team felt would deny them a fair trial.