Judgement reserved in Nchindo case

BAME PIET
Staff Writer | Wednesday January 20, 2010 00:00

 

The appellants are also seeking to have signed statements from the state witnesses, to have discussions with state witnesses, as well as documentation and particulars of all the charges they are facing. They already lost the bid at the High Court last year when Justice Dibotelo ruled that they had been given enough particulars and documents.

Arguing his case before a panel of five judges, advocate Peter Hordes, leading the defence team, argued that in denying the defence attorney access to all documentation of the case, the prosecution was trampling on his clients' right to a fair trial. He said that some of the charges levelled against his clients were unclear, hence they were seeking details behind the charges.

He said that Moroka erred in not considering the relevant provisions of the Criminal Procedure and Evidence Act (CP&E) against the backdrop of the Constitution. 'The Gaborone subordinate court thus failed to have due regard for the appellants' right to be informed in detail of the nature of the offence charged and the appellant to be given adequate time and facilities for the preparation of their defence as soon as reasonably practicable,' he said in his heads of arguments. He added that the magistrate approached the question of whether further particulars needed to be supplied through the prism of two sections in a different portion of the CP&E. 'The magistrate did not apply the correct test when assessing whether the further particulars sought by the appellants in request should be ordered,' he added.

The attorney did not spare High Court judge Justice Dibotelo either, for confirming Moroka's stance that the state should not supply the defence with further details as they had already done so and had met and complied with the requirements of the CP&E.

'In reaching those conclusions, Justice Dibotelo erred, in our submissions, appreciably and materially. His analysis of when an accused person is entitled to greater particularity in respect of a charge suffers from the same defects as the analysis of Magistrate Moroka.

Furthermore, and in any event, in holding that all the charges complied with Section 128 and 131 of the CP&E, Justice Dibotelo was, with respect clearly wrong,' said the attorneys.

However, leading the team from the Directorate of Public Prosecutions (DPP), Kgosietsile Ngakaagae argued that the defence team was demanding too much from the prosecution. He stated that it has never been practised in this country where the defence team was allowed to interrogate state witnesses at any place outside court.

According to the information brought before the Court of Appeal, 80 files and 50 written statements have been availed to the defence team. Ngakaagae said that the defence demanded to interview all former members of the Mogae cabinet, wanted to have interviews with state witnesses, wanted a 'definitive' list of witnesses and even wanted signed statements from all state witnesses. He stated that they have tried all their best comply with the demands from the defence  team but some were just out of order. He added that

He said that the criminal justice system in Botswana is open and the defence will have their time with the state witnesses in court once they have testified.  He said that then they would have the opportunity to solicit and interrogate any information from the state witnesses. He said that the defence team demonstrated that they undermine the magistrate court in appealing the matter to the High Court before it could settle it. He said that if this were allowed to happen, there is going to be a situation where anybody could just rush to a higher court to seek its intervention on issues that could be solved at a lower court. He added that it could also result in one case being handled by two courts at the same time causing serious delays.

Ngakaagae reiterated that the state has nothing to hide and the defence will have their day in court. Both teams applied for the award of costs.