Tears as Moroka sends Nchindo and Matome to jail

GIDEON NKALA
Staff Writer | Tuesday October 12, 2010 00:00

 

Of the many cases Moroka presided over as a magistrate there is no doubt that he will be remembered most for his last judgment at the Magistracy.

Yesterday at the Regional Magistrates Courts, Moroka convicted and found Louis Garvas Nchindo, Tourism Development Consortium, Golconda Holdings and Joe Matome guilty on all the counts they each faced.

In a judgment that lasted slightly over four hours, the amount of time it takes some people to drive between Gaborone and Francistown, Moroka read a judgment punctuated by 'I find them guilty' and I convict' refrains. The clock had just struck 10.35am when Moroka started reading his judgment and he continued non-stop through lunch and it was just some minutes before 3pm that court dispersed.

There was a dramatic twist at the end. Not only did Moroka convict the four accused, two of them being companies that were owned by the late Louis Nchindo and in the present case represented by their director Louis Garvas Nchindo, he remanded Matome and Garvas Nchindo in custody until they return to court on October 27 for mitigation and sentencing.

It would be an understatement to say that the remand was unexpected. When defence lawyer Parks Tafa stood up to address court at the end of judgment he intimated that the defence will appeal the judgement. However, it would appear Tafa's primary reason was to ask court to expedite the production of the case record so that they could prepare for mitigation. Incidentally, Tafa informed court that though his clients had been convicted there had been an agreement between the defence and the prosecution that the accused will continue to be out on bail until October 27 when they come for mitigation. Prosecutor Ngakaagae informed court that they had no problem with the accused being given bail until October 27. It was at that point that Regional Magistrate Moroka reminded the lawyers that now that the accused have been convicted their circumstances have completely been transformed and consequently the issue of their bail becomes a province of the court and not a deal that can be transacted between lawyers. Moroka said he would remand the two. It was like a sharp knife had been placed into a throat. As the Magistrate rose and disappeared into the inner door there was a hush silence. Heavy silence. Even photographers took a second longer to click for a Polaroid moment.

Up to that point people were mulling over the convictions but the introduction of a remand unsettled them. There was gnashing of teeth, tears were shed and uncontrollable sobbing here and there.

All of a sudden Matome and Garvas Nchindo had lost their freedom and friends had to make frantic calls for toiletry to be brought. There were emotional farewells and embraces exchanged when a police minibus came to take them to a prison cell. It took only a moment for these men, who earlier in the morning of this fateful day were free birds, to be convicts.

In the morning before court could begin a friend had pointed out that there was something ominous about the atmosphere.'We never have police officers in this court, why are they here today?

In her view this was a fill-in the blanks scenario. As far as she was concerned the police officers represented vultures hovering over an animal that is about to go down.

When giving judgment Magistrate Moroka said the element in Counts 1 and 2 were similar in that Joe Matome is alleged to have given false information to a person employed in the public service contrary to Section 131 of the Penal Code. In Count 1 Matome is alleged to have given false information to Former President, Festus Mogae, while in Count 2 given false information to members of President Festus Mogae's cabinet.  Moroka said since Matome elected to remain silent and not lead his own evidence Moroka would largely depend on evidence introduced by the prosecution and documents introduced by the defence.

In proving the guilt or otherwise of Matome he referred to the judgment of the late Livesey Luke in the famed judgment of Segobaetsho. In the judgement Former Chief Justice Luke is said to have outlined the elements of giving false information as; giving false information, knowing that the information given is false and that the information given to the official was likely to cause the official to omit what he would under normal circumstances do.

Moroka said the genesis of the issues under discussion started in September 1997 when Louis Nchindo applied for land to the Ministry of Lands for tourist projects. In the paper trail Moroka underscores the fact that even after the allocation was approved by the minister there was intense lobbying by government officials to support the project and in this Matome's role was said to be prominent. Moroka said TDC was conceived by Debswana, as a Debswana project in a department headed by Matome but through what was presented as a well-orchestrated plan it was unlawfully removed from Debswana to the ownership of Nchindo and his son Garvas, while Matome was made company Secretary.

Moroka said Matome knew that the information that he gave to Mogae and cabinet that TDC was a Debswana driven project was false since he is the one who gave an instruction that the shares in TDC that resided in some Debswana employees be transferred to the Nchindos.

Moroka said at the presentations made to President Mogae and his cabinet Matome need not have said a word in order to be guilty. He said activities before and after the presentations show that Matome gave false information and that he knew the information to be false and he knew that the information was likely to cause Mogae and his cabinet to support the allocation.

During the submissions, Advocate Craig Webster had said that the presentation to cabinet and President Mogae had nothing to do with the allocation as the allocation had already been made by former Minister Jacob Nkate. Moroka dismissed this line of thinking saying one had to consider all activities including the charm offensive launched by team Nchindo to get the support of government. Moroka underscored the statement made by former President Mogae that had he known that TDC did not belong to Debswana he would have stopped the allocation.

Convinced that all the elements had been proved Moroka convicted Matome on Counts 1 and 2.

The three accused (Matome, Garvas and TDC) were found guilty and convicted of forgery contrary to section 344 as read with section 339 of the penal code. Moroka said this count can only be proven if it is shown that the document purports to be what it is not. He said it was very clear that the resolution dated October 23 was prepared purporting to be a resolution adopted at a meeting of Board of directors of TDC authorising the late Nchindo to buy Plot 55720 on behalf of the company. Moroka said such a meeting could not have taken place as at the time Nchindo was not yet a director of this company. Moroka found that this resolution purported to represent what it was not and he therefore convicted all the four.

Turning to Count 5 Moroka found that Matome, Garvas and TDC were all guilty of obtaining by false pretences. Moroka said the land at Plot 55720 was surveyed for Debswana as a client and possibly paid for by Debswana. He said Plot 55720 could not have been anything other than the property of Debswana. He consequently found that the plot was unlawfully obtained and convicted each of the accused.

Count 7 confined itself to Matome and the role that he played in disposing of Debswana house that was eventually sold to the late Louis Nchindo. Moroka said that the evidence that had not been challenged showed that Matome had always wanted to sell the house to Nchindo directly and without going for a bid. He was only stopped, according to Moroka, by the intervention of Andrew Walters, a fellow Debswana employee who frowned on such an untransparent practice. Moroka said evidence that has been led showed that Matome knew the bids submitted by bidders from outside Debswana, Nchindo's bid was written on Matome's computer and because Matome chose not to give his evidence there was no explanation from him why this was so.

This to Moroka was fatal in his case. Moroka even concluded, 'Matome writes Mr Nchindo's bid, submits it to himself as the tender committee, decided that it should win the tender and then he pops the champagne.'

'He made sure that Nchindo got the house by hook or crook.'

Matome was found guilty and convicted.

Flowing from this count Golconda Holdings, the late Louis Nchindo's property company, which received the property was found guilty of receiving unlawfully obtained property. On the last count of cheating the taxman contrary to Section 33 as read with section 36 of DCEC Act Golconda Holdings was found guilty of cheating the fiscus of revenue. It was here where the spotlight was put on the evidence of High Court Judge David Newman who was presented to court as a conveyancing expert. Moroka said while judge Newman's evidence relied on practice it was contrary to the dictates of the law. According to Moroka the correct position is that payment of duty should follow successive transfer, unlike in the case of Nchindo who got property from Debswana and transferred it directly to Golconda without himself paying transfer duty. Moroka said the public revenue was cheated of due tax.

In the entire case it was not just Judge Newman who suffered a battering from his evidence but Minister Jacob Nkate did not escape the wrath of the court. Moroka said the court struggled to place Nkate as an animal or a bird given his shifting evidence. While he said he restrained himself from branding Nkate a liar he said his performance in court was unfortunate.

In Count 7, the court fell short of calling Joe Matome an errand boy of the late Louis Nchindo.