Magistrate to decide Garvas, Matome 'forfeiture' request

GIDEON NKALA
Staff Writer | Thursday October 28, 2010 00:00

 

Many had come hoping to hear the lawyers leading mitigation for Garvas Nchindo and Matome. Those who had come with this template were disappointed yesterday morning as it became clear that the case, styled as the Nchindo case, refuses to go even when it is in its last throes.

In the morning the case was postponed to the afternoon after the prosecution and the defence teams could not quite agree on whether they should admit the character references of Matome and Garvas Nchindo written by six referees without cross-examination.

When submitting the character references, Advocate Craig Webster told court that the parties had agreed that the letters be submitted.

For his part, Prosecutor Kgosietsile Ngakaagae, said that they were not opposed to the character references being formally submitted but they could not associate themselves with the content of the references.

A little discussion ensued, at which point Magistrate Moroka weighed in and said that the law is that such referees in mitigation ought to be cross-examined unless the prosecution decides to forgo that opportunity.

Not in so many words, he stressed that once the references have been admitted the content remains uncontested.It was at that point that Ngakaagae changed tactics and said that they will insist on the referees giving evidence and then be cross-examined. Without going into mitigation the case was postponed to the afternoon session.

Prior to this exchange, Prosecutor Matlhogonolo Phuthego made an application that the plots 55720 and 3084 that the court found improperly obtained should be forfeited to the state. Phuthego said even without the court convicting the accused, it should grant this application since evidence has been led to the effect that at the time when the application for Plot 55720 was made there was no applicant.

He then convicted, his argument based on Section 319 of the Criminal Procedure and Evidence Act and Proceeds of Serious Crime.

He said these statutes mandate the court to order forfeiture.

This line of argument was resisted by Advocate Webster, who said the application for forfeiture is an elaborate one which cannot be done off the cuff in a two minute application.

He said Section 319 would only be invoked once the lands rests on the state but he argued that as matters stand the land is now lawfully registered under the names of Tourism Development Consortium.

He said the prosecution will have to motivate a proper application by way of notice of motion, to institute a review process which will be properly determined.

Webster said at the moment the court is incompetent to apply its mind to the issues surrounding the application. He mentioned that the land in question has since been subdivided.

When Ngakaagae weighed in he said the trial court is the best forum to deal with the case as it dealt with all the evidence. He said it would be absurd to have another court dealing in low quality evidence to deal with this application. Ngakaagae argued that the current criminal trial is best suited to determine the forfeiture application.Magistrate Moroka reserved judgment on forfeiture.