The big case with simple arguments

TSHIRELETSO MOTLOGELWA
Staff Writer | Wednesday September 29, 2010 00:00

Yesterday when the Directorate of Public Prosecution team of Matshwenyego Phuthego, Kgosietsile Ngakaagae and Gopolang Tlhabologang faced off with defence lawyers Craig Webster, Paul Farlan and Lawrence Khupe in the Nchindo case, they presented what seemed to be complicated arguments.

After a very ambitious charge sheet, the prosecution has been forced to edit and adjust and now that they have counts 1, 2, 4, 5, 6, 8 and 10.  It sounds like a loss, but the prosecution will argue that it is better to shave off the flab and leave the counts they are more likely to win on.

The defence in the meantime has a much simpler job to do and fewer charges. However this may mean a lot more hardwork as the charges get fewer.  This is because logic would suggest that the charges that are left are the most difficult to dislodge. The prosecution has called 25 witnesses, while the defence has two.

The accused have been kept off the witness stand. One of the accused Louis Garvas Nchindo faces two counts - forgery and obtaining registration of a title deed by false pretences.  The company TDC faces count five - obtaining registration of a title deed by false pretences.  Joseph Matome faces five counts - giving false information to a person employed in public service (two counts), obtaining registration of a title deed by false pretences and conspiracy to prevent lawful disposal of property for its fair value.  The last accused, the company called Golconda faces two counts - receiving unlawfully obtained property and cheating the public of revenue.

The prosecution might view their case more in terms of wide brushstrokes, urging an approach that brings together events to paint a total picture of what Ngakaagae yesterday called a 'jigsaw.  They want a paper-trial method.  The prosecution's approach calls for a gathering of all the disparate parts together to build a picture. 

The prosecution will rely on a lot of circumstantial evidence. The defence is more likely to break everything into minute points and winning each on its own, almost looking like they want to judge everything out of context.

The prosecution argues that Matome gave false information to former president, Festus Mogae and members of his cabinet.  As part of a team, he is said to have made presentations to the former president and cabinet to the effect that a company called TDC was a subsidiary of Debswana. Furthermore they were led to believe that TDC was a tourist venture of the mining company. This led Mogae and cabinet to assist in the allocation of Plot 55720 Gaborone to TDC. They did this through an elaborate scheme involving much more than the actual presentations. 

To accept this argument, it has to be taken into consideration how each event or action fits into the rest of the alleged plot.

The defence maintains that even if the presentations were made, at no point was reference made to a company names Tourism Development Consortium (TDC). The defence has consistently sought to bring the difference between TDC as a Debswana venture and TDC Pty Ltd, which they argue is a Nchindo company.

Webster argues that no-one has pointed out confidently that Matome was even present in the presentations to Mogae and cabinet.  Matome and Nchindo forged a resolution for company TDC which at the time did not exist. 

The circumstantial evidence point to Matome and Nchindo having presented a false company resolution with a view to deceive. Nchindo and Matome acted together to procure the title deed for Golconda arising out of the same resolution.

It is said Matome conspired to prevent the lawful disposal of a Debswana-owned house number 3084 by illegally failing to hold a fair auction of the plot, but rather giving it to the late Louis Nchindo.  Webster argues that for the issue to be followed properly, a proper chronology has to be designed out of the events. 

He says when organised in that way, it would be found that the allocation of Plot 55720 had been done even before the cabinet was involved.  However following from the case to answer application, Webster argues that it is not just enough for the prosecution to present the same arguments. He says that the court may still find his clients innocent.