Nchindogate - foes go for broke

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

 

When elephants fight it is the grass that suffers. And yesterday, all day, as the prosecution led by Matshwenyego Phuthego and Kgosietsile Ngakaagae on one hand, and the defence led by Advocate Craig Webster on the other were at it, it was the other characters in this saga who felt the fury of the combat.

Yesterday was the final leg of the Nchindo case as both parties presented their final submissions.

Witnesses brought before the court were gored as each party attempted to buttress its case by discrediting some witnesses and protecting those friendly to their side.

David Newman, who was allegedly involved in the allocation of Plot 55720 to TDC and the buying of Plot 3084 in Gaborone during his time as a partner at Nchindo's lawyers, Collins Newman, got caustic treatment from Ngakaagae. Ngakaagae dismissed Newman's witness statement saying Newman did not buttress any of his assertions with points of law. Ngakaagae says as a High Court judge Newman's input was 'terribly disappointing'.Newman allegedly handled the conveyancing for Plot 55720 for TDC and transferring Plot 3084. The prosecution argues that both were illegal.

'Newman says auctions were an exception to statute rule on transfers. Judge Newman, where do you get thatExperience. His experience is not law. We don't ask for experience because experience is not law.  'Fifteen or 20 years of wrong experience does not make a right. Judge Newman, what are you on about? That is why we are terribly disappointed with the judge. He could not have been a reliable witness. Not by any stretch of imagination,' Ngakaagae queried.

Minister Jacob Nkate did not escape the wrath of the prosecution. Prosecutor Phuthego said Nkate was the very definition of a contradicting witness. Nkate has been a target for the prosecution after he somersaulted on them by contradicting his statement while under cross-examination, putting the prosecution's case, especially on the major counts in danger of collapse. Initially, in a statement he had given to the Directorate of Corruption and Economic Crime, Tymon Katlholo, he said that he had allocated Plot 557210 in Gaborone to Tourism Development Consortium with the understanding that he was assisting a Debswana-owned tourism project.

However, during re-examination he argued that there was no indication that TDC was connected to Debswana, thereby opening up the defence argument that the two entities were not related at that point and that the plot was allocated to Louis Nchindo.   'During re-examination, the prosecution started the process of impeachment of Nkate as a witness. His assertion about there being no indication of Debswana having been connected to the application for land ran contrary to what Mr Nkate wrote in his statement'.

Phuthego then quoted at length from Nkate's original sworn statement where Nkate made assertions that he was in full knowledge that TDC was a Debswana project and the land allocation was made to the company with that understanding.

In the statement, Nkate says: 'The application in respect of which I received a recommendation and proceeded to make an allocation of 70 hectares was to my mind clearly an application by the consortium, which I understood was a Debswana group'.

However, when the time came for the defence, Webster came to the defence of Nkate arguing that the prosecution, in its confused approach to the events surrounding the allocation, confused Nkate.

'Nkate said he relied on the input of his officers in the ministry. He took advice and approved the TDC application on July 2000. It was not an application by Debswana. The allocation was his own decision,' said Webster. 'In fact an impressive witness, he was shabbily treated by the prosecution,' concluded Webster.

Webster argued that if the prosecution wanted to declare Nkate a hostile witness, they should follow the known procedure.

Not to be outdone, Webster put a dagger into state witness, former president, Festus Mogae, immediately after Ngakaagae's submissions.

Webster said Mogae, even though the prosecution predicated their case on his testimony, under cross-examination the former president failed to provide the real facts to help the prosecution.

The prosecution maintains that Mogae was among the public servants that Nchindo and his associates misled into believing that TDC was a Debswana initiative, thereby inducing them to help the company accrue land in prime tourist areas of the country and most specifically Plot 557210.

Webster says Mogae's role was irrelevant since he played no practical role in the allocation. He also said Mogae could not have been useful to the prosecution's argument if the latter followed the chronology of events.

'Mogae could not have played any meaningful role in the allocation even if he wanted to. The allocation had already been done by the time the alleged presentation took place,' concluded Webster.

The fire was not just for the witnesses. Both Ngakaagae and Webster at various times in the proceedings exchanged darts. At one point when Webster sought to read through Nchindo's witness statement, which the prosecution had argued that could not be allowed because the late Nchindo could not be cross-examined on it, Ngakaagae shot up to interject.

'My learned friend will not tell me how to structure my argument,' shot Webster stealing a quick glance at Ngakaagae.

The case continues today with Webster's submissions. The prosecution is set to reply later in the day. The court will then break for Magistrate, Lot Moroka, to deliver his judgement.