Defence challenges courts' jurisdiction in CMS case

ISAIAH MOREWAGAE and MPHO TLALE
Staff Writer | Friday November 12, 2010 00:00

 

Duma Boko said yesterday the court had no powers to try suspects whose criminal activities started in Botswana and ended in a foreign land. He said the CMS case raises the issue of territorial criminal jurisdiction because documentary evidence such as bank statements of two suspects Patrick Cole and Clement Molefhe were taken from South African banks. Boko stated that even though the alleged crime commenced in Botswana, the law states that the country upon which the completion of the alleged crime ends is where the case can be brought against the alleged culprits.

'The completion of the alleged crime is in South Africa. Thus the offence was committed outside the jurisdiction of the magistrate. We are dealing with a jurisdiction problem,' Boko submitted.

He said that documents presented in court as exhibits were not properly authenticated. He said the person who did the authentication was not authorised to do so and the magistrate should disregard the documents. He urged the magistrate to return a verdict of not guilty against all the accused as the state had failed to make its case.

The state had failed to give the court an independent witness to corroborate the evidence of an accomplice witness. They are relying on the evidence of a self- confessed criminal, liar and a mastermind,' Boko said.

He stated that the state has failed to make a prima facie case against the accused and the court is left with no option but to acquit them. 'There is a missing connection in the state's case because they failed to call critical witnesses who should have advanced their case. We have missing puzzles in the jigsaw puzzle,' Boko said.

However, deputy Director of Public Prosecutions, Phadi Solomon contended that the magistrate had complete jurisdiction over the case. She told the court that the commissioning of the crime originated in Botswana thus within the territory of the magistrate's jurisdiction.

She said the authentication of documentation that prosecution had raised was done properly. Solomon pointed out that officers at diplomatic missions have powers to authenticate documents originating from countries they are based at.

Another state attorney, Priscilla Israel said that all the accused persons are properly before court. Israel pointed out that the state's case is based largely on circumstantial evidence and the accused should be called to answer for the allegations levelled against them.

At the end of the proceedings, Moroka adjourned the case to today when he will rule whether the state has made a case against the accused. The defendants in the fraud case are; Jabulani Johnson, Norman Maja, Aaron Babolele, Lebogang Kaisara, David Tumagole, Cole, Molefe, Otsile Mosarwe, Abraham Marumo, Nthibo and Bee Jenamo Mfana.