Appeal Court to deliver verdict in Nchindo cases

BAME PIET
Staff Writer | Friday January 22, 2010 00:00

 

In the first case, Nchindo is challenging a High Court judgment last year granting a restraining order against him. The order bars him from developing the plot on grounds that he has to wait for a resolution of the criminal proceedings instituted against him at Village Magistrate's Court in Gaborone. The Court of Appeal case was filed by Nchindo, his son Garvas, Tourism Consortium (Pty) Ltd, former Debswana employee Joseph Matome and Golconda Holdings (Pty) Ltd.

Yesterday, his team of attorneys, led by Advocate Peter Hordes, stated that the restraining order violates their client's constitutional right to a fair trial. Hordes argued that the Director of Public Prosecutions (DPP), Leatile Dambe does not have powers to apply for a restraining order because she is the prosecutor in the criminal case. 'It is unacceptable for the DPP to apply for this Restraining Order when she is prosecuting,' he said. He added that civil matters should be handled by the Attorney General or through his or her agents.

He added that the restraining order emanated from a civil matter that the DPP improperly launched. He disagreed with the position held by the DPP that the order is meant to preserve the plot to be used as an exhibit in the criminal proceedings against Nchindo and his co-accused. The lawyer wondered whether the order also affected the title deed of the said property. He lamented that his client is going to suffer financial ruin if the order is not quashed. 

He said that the DPP's argument that the right to silence and right against self-incrimination can be limited in the public interest and that infringement of the right by the Proceeds of Serious Crime Act (PSCA) is wrong. 'As Justice Walia held, that contention is wrong. The rights in Chapter II of the Constitution are not subject to a general public interest limitation. Any limitation thus have to be contained in the rights themselves,' he said. He pointed out that the PSCA does not tolerate any exceptions, no matter how serious the rights violations occasioned by a restraining order application. 'It also does not expressly permit a restraining order application to be stayed pending resolution of criminal proceedings. In the circumstances, it must, we submit, be found to be unconstitutional,' he said.

Senior Counsel Moatlhodi Marumo for the Attorney General stated that the DPP is empowered by the Constitution to institute, continue or discontinue criminal proceedings against anybody ranging from theft, financial crimes and other complex cases. He stated that the Constitution is the supreme law of the country that is used as a benchmark for other statutory laws that can be amended anytime when legislators feel it is necessary to do so.

He said that the restraining order is meant to preserve the plot as an exhibit just like it happens with other property gained from criminal activities.  He said that Proceeds of Serious Crimes Act states that goods recovered from suspects of crime should be kept as exhibit. He stated that when a person is caught in possession of diamonds (a serious offence) and if he is allowed to keep them, they could process the gemstones into jewellery the following day, hence killing the prosecution's evidence. 'She (DPP) is empowered to deal with a wide spectrum of the situation, and the restraining order is to ensure that there is no dissipation of crime proceeds,' he stated. He said if the system allows suspects or accused persons to dissipate such proceeds, then the purpose of the prosecution would be defeated.

He dismissed the arguments raised by the applicants that the restraining order would infringe on the accused person's right to fair trial and that he would suffer financial ruin.

He stated that they are only concerned about their client's personal circumstances instead of objectively analysing the Constitution. 'It is a subjective attack on the constitutional validity.' He said that the appellants must wait for their date at trial court where the fairness of the constitution and statutory laws would be put to test. He appealed to the court to weigh the interests of the accused, the public and the society.

Making submissions after Marumo, another state prosecutor Matlhogonolo Phuthego stated that the DPP has power to seek a restraining order against anybody with the advise of the Attorney General. He said that the appellants have an option of remaining silent during criminal trial. Phuthego invited heavy criticism from the judges when he suggested that the case was improperly brought before both the High Court and the Court of Appeal. They asked him if he suggested that they should not find a solution to the matter. All the parties applied for the award of costs.

The case comes two days after the Court of Appeal presided over another matter in which Nchindo and others are challenging a decision by the Village Chief Magistrate, Lot Moroka not to allow his defence team access to state witnesses, that he should interview state witnesses as well as have their signed statements. The DPP argues that it has given the defence enough documentation and witness' statements and feels the defence team is demanding too much.