CMS accused win some respite

ISAIAH MOREWAGAE
Staff Writer | Tuesday February 28, 2012 00:00

 

Cole, Norman Maja, Bushy Nthibo, David Tumagole, Patrick Cole and Abram Marumo were convicted and sentenced to various prison terms by now Lobatse High Court Judge Lot Moroka for defrauding the Central Medical Stores (CMS) of about P21 million.

Yesterday, Steven Gaongalelwe found that Cole, his company and Tumagole were convicted on a defective charge sheet and ordered a re-trial of the trio. 'It is therefore ordered that Patrick Cole, Ussasa Construction and David Tumagole be released on charges under this case and they are to be re-tried under a properly drafted charge sheet,' Gaongalelwe ordered.

However, Nthibo must be cursing the moment he launched his appeal. In court one, where he was convicted with Maja, he (Nthibo) was ordered to compensate government over P3 million after the court acquitted Maja. At trial court, Nthibo and Maja were ordered to pay half of the P3 million. Maja was acquitted after court found that the trial court erred in its findings after it failed to establish corroborating evidence to support an accomplice witness' version.

On other counts, Gaongalelwe dismissed the appellants' bid but ordered that their sentences run concurrently as opposed to consecutively as ordered by Moroka. Gaongalelwe further confirmed compensation orders made by Moroka.

On the grounds of appeal, the appellants submitted that the lower court had erred and fundamentally misdirected itself in its enumeration of the essential ingredients of the offence that they were charged with. As a result, it had misunderstood and misdirected itself on the nature of the offence of obtaining by false pretence as charged in the instant matter by failing to deal with the submissions advanced on behalf of the appellants. Further that the court had failed to address the requirements necessary to establish the false pretence as laid out under Section 307 of the Penal Code. They said that the court's failure to particularise offence in the manner urged by the defence resulted in failure by the court to then examine the evidence adduced by the prosecution properly in terms of whether or not it establishes that any of the appellants made any representation in the manner required by section 307. It is the cumulative effect of the lower court's misdirection as stated above, that it failed to identify what exactly in relation to the offence charged each appellant did at the level of establishing their involvement on the offences they were charged with.  The correct approach and indeed the approach painstakingly urged on the court by the defence, they submitted, was for the court to enumerate what each appellant is alleged to have done in furtherance of the offence and the source of such allegation. The court would then have been able to seek, where necessary, independent corroborative evidence. He also submitted that the court had failed to appreciate the submissions made for the appellants on the question of jurisdiction and as such failed to consider at all those submissions and in so doing fell into grave error.

Maja was represented by Kgosietsile Ngakaagae of Ngakaagae Mbikiwa legal practice while Duma Boko of Duma Boko and Company represented the others. They are set to launch another appeal at the Court of Appeal in due course.