Voice evidence will decide Mhlauli's fate, not paper work

GIDEON NKALA
Staff Writer | Friday November 30, 2007 00:00

When he rose to address the court for the last time, giving his final submission, advocate Van Zyl, acting for Mhlauli, said he must have had this uppermost in his mind. He prepared 37 pages of heads of argument in which he set out to punch holes in the evidence that was led against Mhlauli.

Kadimo Oremeng, the prosecution's star witness got a big chunk of Van Zyl's body blows.
Oremeng was brought to court as an accomplice witness and the advocate urged the court to proceed with caution when considering his evidence.

Oremeng and Mhlauli acted in concert to bring a false application against Eddie Norman to the high court.

The advocate cautioned against Oremeng's evidence, particularly as it related to the genesis of the false High Court application.

Quoting from findings of another court on the same principle, he said the cautionary rule 'requires that the court should warn itself of the danger of convicting upon the evidence of an accomplice, and show that it has heeded the warning by pointing to some factor which can properly be regarded as reducing the risk of convicting an innocent person'.
Advocate Van Zyl said quite apart from Oremeng being an accomplice, he had said in some evidence led in court that he was the sole witness and he prayed that even under these circumstances, the court should also invite the cautionary rule.

'It is submitted that Oremeng was a poor witness and that it would be dangerous to make any findings adverse to the accused on those parts of his evidence that were placed in dispute by the defence,' argued Van Zyl.

He pointed out that Oremeng had made two statements in the application to the high court, the content of which was devoid of truth. He also made an affidavit at Armstrongs' attorneys which he told court was false.

'Oremeng has shown himself to be a person whose word is not to be trusted, even if he had sworn to tell the truth,' Van Zyl said.

He went on a trip showing what he termed as 'material defects' in Oremeng's evidence. First he said there were inconsistencies between Oremeng's statement at the DCEC and his evidence.

According to Van Zyl, Oremeng told court that Mhlauli had made a proposal that he could cause allocation provided that the two would own the plot. He said this 'crucial' piece of information does not appear on the DCEC statement.

Further, Van Zyl submitted, there were inconsistencies in his evidence relating to the role played by Cheks Lekalake. He said in that piece of evidence that it was Lekalake who first told him about Goolam being interested in financing a bogus case and paying Oremeng for his involvement while in another piece of evidence by Oremeng, it was Mhlauli when he first visited Oremeng in Thabala.

He pointed out that there were even more inconsistencies in the amount of money that Goolam was to pay Oremeng. In one instance, Lekalake told him Goolam would pay him P130, 000 for his troubles while in another Mhlauli told him that Goolam would pay P100, 000 in instalments of P20, 000 a month.

He said these defects in the evidence of Oremeng were material particularly considering that Oremeng had told court under cross-examination that Lekalake knew nothing about the payments.

He argued that Oremeng had even contradicted himself on how the land was to be shared.

'It is submitted that there are so many material contradictions between Oremeng's evidence-in-chief, the statement he made to DCEC and his version during cross-examination, that it is impossible to decide what to believe and what not,' Van Zyl submitted, adding that the evidence of Oremeng's wife should also be viewed with circumspection since it was merely meant to support the evidence of her husband.

The prosecution had made fodder out of Eddie Norman's evidence that Mhlauli had called him to say that because he had helped him to get the plot, he now needed a reward and the time was nigh for the defence to shut the door on this cupboard.

Van Zyl said Norman had made it clear that there was nothing untoward about his allocation of the plot. He said it was improbable that the accused could call Norman to give him 'something' two years after the plot had been allocated. That occurred more than four months after Mhlauli had retired from the public service.

'Surely, bearing in mind the amount of money involved, the accused would have informed Norman at a much earlier date of his involvement and his expectations. Even if it could be said that the accused wanted to wait until after his retirement before approaching Norman - which in itself is highly improbable - one would have expected, on the basis of probability, that he would have contacted Norman shortly after his retirement at the end of February 2000.

'It remains so improbable, that it cannot be believed that the accused would assist Norman to obtain the land in question with the expectation that he would receive 'something' from Norman without mentioning any of this to Norman until more than two years after the event'.

Next on the line was former Chief Lands Officer, Milidzani Majingo whose evidence was that Norman's application was inferior to that of Oremeng and that in terms of value, the Riverwalk plot was more valuable than the Block Five plot that was eventually allocated to Oremeng under a company in which he was a shareholder; KOVK.

It is this piece of evidence that seemed to suggest that Mhlauli was 'arbitrary' and that he prejudiced the right of Oremeng in directing that the Riverwalk plot be allocated to Norman.

'Majingo attempted to make out a case that the application by Oremeng was more deserving of allocation at Riverwalk than the application of Norman. He was also of the view that the land at Game - now Riverwalk - was worth more than the land at Block Five.

Van Zyl said Majingo had never expressed any view, not even a murmur, that Oremeng's application was superior even at the last meeting where the decision to allocate Norman (the land) was taken.

Regarding the value of the plot, he urged the court not to take seriously an opinion expressed by Majingo that the land at Riverwalk was more prime than the plot at Block Five.

'We know he is not a land-valuer, so he was merely expressing his opinion. The fact that the land was allocated to Norman and was sold at a price of P34 per square metre, and that the land allocated to KOVK at Block Five was sold at a rate of P54 per square metre indicates clearly what the department of lands regarded as the more valuable property at the time.

Having discussed the evidence, Van Zyl addressed the court on the elements of the offences that his client had been charged with.

He argued that Mhlauli's act to award the plot to Norman was not arbitrary but based on a reason.

He said even if the court disagreed with the reason, Mhlauli was guided by reason and prevailing circumstances to allocate (the land) to Norman. He said there was public pressure and the danger of double allocation to Oremeng who had applied for another piece of land in Block Five.

'Even if a court may not agree with the reasons advanced for a particular decision by an official, or be of the view that the official should have taken into consideration other facts and circumstances as well, that in itself will not make a decision arbitrary. It can only be said that the official did or directed an arbitrary act to be done if he acted without any reason or for a reason so patently absurd that it was a mere pretext for acting,' argued Van Zyl.

On the subject of false swearing Van Zyl submitted that an affidavit is a statement under oath and the court should decide whether the statement made by Mhlauli when he appeared before the Commissioner of oath,attorney Samukello-Thuto was an affidavit.

'On the face of the confirmatory affidavit,it was sworn to before Patience Samukello Thuto'.

The accused denied that he was asked to swear to the truth of the contents of the statement.Consequently the state had to prove that Thuto had indeed administered an oath to the accused when Mhlauli signed the confirmatory statement.

Thuto's evidence in this regard is inconclusive. She readily admitted that it is impossible for her to remember whether she had administered the oath in this instance.

She also conceded that she has no independent recollection of having administered the oath on this occasion.

When she was asked whether sometimes she does not ask deponents to swear, she replied, 'most of the times I do', and thus she suggesting that she sometimes does not'.
Van Zyl said even in her statement to the DCEC Thuto did not say she administered an oath.