When lawyers contradict each other

Tebogo Kgalemang
Correspondent | Monday October 31, 2011 00:00

Many people who had hoped to get free lessons from the state counsels, who usually urge their witnesses to give corroborating evidence in court, were left with unanswered questions as to what to expect from the prosecutors when they deal with their cases.

In the case, state counsel Mpho Letsoalo, from the Directorate of Public Prosecutions (DPP) was sued by lawyer Tshekiso Tshekiso for saying that he 'suffers from verbal diarrhoea and he is myopic'.   Tshekiso sued Letsoalo for P350,000, saying he was insulted, and as a result was humiliated and degraded by the words, which were uttered in open court on December 2007. Letsoalo called another prosecutor, Waniwa Ngebani, as his witness. The duo contradicted each other in almost all the areas of their evidence.

* According to Ngebani's evidence, he met with Letsoalo at their office at around 7am where Letsoalo gave him instructions to appear on his behalf. Letsoalo asked him to postpone a case in which he (Letsoalo) was to appear with lawyer Tshekiso alleging ill health.

Contradictory to this, Letsoalo in his evidence told the court that on the day in question he met Ngebani for the first time at the courthouse at around 9am and gave him instructions at about 10am. He said he gave Ngebani instructions when he saw that the court was unlikely to convene in good time.

* Ngebani told the court that Letsoalo gave him his sick leave note at their office, which he was to produce to the court. He stated that when he showed the sick leave note to Tshekiso, he (Tshekiso) did not have a thorough look at it. Ngebani further stated that to his surprise, Tshekiso questioned the sick leave note, saying it was not genuine. He (Letsoalo) told the court that he only gave the sick leave note to the magistrate's clerk at about 10am. He said he then retained a copy.  According to Letsoalo, he never gave a sick leave note to Ngebani.

* Ngebani said Letsoalo was never at the court on that day, while Letsoalo contended that he was there between 9am and 10am.

* Ngebani told the court that the prosecution witnesses were in attendance. But, according to Letsoalo, they were not. Letsoalo said the witnesses were not in attendance because it was anticipated the postponement would have to be granted in the absence of another lawyer who was also dealing with the matter.

* Ngebani further averred that after Letsoalo said Tshekiso was suffering from 'verbal diarrhoea and was myopic', the presiding chief magistrate then asked Letsoalo if he meant that Tshekiso was saying s**t. He said Letsoalo then responded that he did not mean what the chief magistrate said. But, according to Letsoalo, he did not comment on what the chief magistrate said.  At the end of their evidence, Judge Moses Chinhengo of the Francistown High Court concluded that they did not tell the truth in certain areas of their evidence.

'It seems to me that if both Ngebani and Letsoalo were untruthful in any respect whatsoever, Letsoalo was more so,' said Chinhengo.

The Judge then ruled that in regard to the discrepancies in the evidence between the two, as to when and where they met to give each other instructions and what  instructions were, Tshekiso stood out as the more truthful.

'The conclusion is inevitable that generally speaking the truth of what happened on December 14, 2007 lies in

what Tshekiso said,' he ruled adding that unlike the prosecutors, Tshekiso was supported on every material issue by his witness that he had called.

Tshekiso's version was that he and Letsoalo were to appear before a magistrate's court on a matter that was scheduled for trial. Letsoalo did not show up but instructed Ngebani to appear for him. Ngebani applied for a postponement of trial alleging that Letsoalo was not well.

Tshekiso then objected to the postponement, saying the state was not eager to proceed with the matter as it had been postponed several times at their instance. He also said that he did not believe the sick leave note to be genuine, alleging that it was just a cover-up for the state's failure to prepare for the trial.

Tshekiso went on to submit before the magistrate that if the trial does not proceed as scheduled, his client should be discharged in terms of section 150 (4) of Criminal Procedure and Evidence Act (cap 8:02).

The magistrate then adjourned the matter to the afternoon and ordered Letsoalo to appear to respond to his application. When the court resumed in the afternoon, the magistrate allowed Letsoalo to respond to Tshekiso's application.

The latter denied that they were delaying the proceedings of the case.  He accused Tshekiso of misleading the court, that the state was not prepared for the trial. He then uttered that Tshekiso was, 'suffering from verbal diarrhoea and is myopic'. When the presiding magistrate asked the latter if he was aware that he was insulting Tshekiso, Letsoalo never tendered an apology, despite Tshekiso's demand for it.

In the end, Letsoalo was ordered to pay Tshekiso P50,000 as the court found that his utterances constituted an insult.