Mabua blamed over Daisy Loo aquittals

BASHI LETSIDIDI | Friday May 3, 2013 00:00

In his judgement, Justice Singh Walia says that the evidence that Mabua at the trial court was 'devoid of truth.'Resultantly, the judge expressed perplexity that then Regional Magistrate, Barnabas Nyamadzabo, found her to be a credible witness.

Tagged 'PW 5' (prosecution witness Number 5) Mabua is described in Walia's judgement as 'the all-important witness for the state' and 'the central player in the whole scheme of things.' The one crucial puzzle of the case is with regard to who, in 2004, authorised Daisy Loo to do bush clearance and grass-cutting work along Segoditshane River at a cost of P24 million when GCC was in no position to afford such expense.

Taking the stand at the trial court, Lucretia Kgopo, the Council's chief accountant, testified that in terms of GCC regulations, no department may exceed its budget by 10 percent.That year, the refuse collection and grass-cutting budget had been substantially exceeded and when Daisy Loo submitted its P24 million invoice, the money was not available. The refuse collection budget for 2004/05 was only P6.7 million and the bush clearing that the company had done had not been tendered for. In his own testimony, Gilbert Sithole, one of the appellants alleged to have conspired with Daisy Loo, told the court that when the company was given the go-ahead to start work, no one at GCC knew how much the job would cost.

While the prosecution argued that the connivance between GCC staff and Daisy Loo management brought about this situation, there is no doubt in Justice Walia's mind that Mabua not only knew full well exactly what was happening but also instructed the company to do the cleaning.Her own evidence was that she never instructed Sithole to have the Segoditshane River bed cleaned up; that she had not authorised such work and that the officer who instructed Daisy Loo to carry out the cleaning exercise had no authority to do so.

The now retired town clerk said that she only became aware of instructions given to Daisy Loo when the company submitted an invoice of a whopping P24 million. To the contrary, Sithole told the court that Mabua had given him such instructions and his account was corroborated by Moemedi Dijeng, the managing director of Daisy Loo.

According to Dijeng, the initial instruction to work at Segoditshane came from Mabua personally and was made in the presence of Sithole. The instruction was verbal and later confirmed in writing by Sadi Abbey (the sixth appellant) who was acting on Sithole's instructions. Dijeng said that lack of authority for Daisy Loo was not an issue until he submitted the P24 million invoice. The summary of events in Walia's judgement says that Dijeng 'was shocked that despite an acknowledgement that instructions were given by PW 5, he was still being accused of committing some fraud.'

A question on almost everyone's mind is why Daisy Loo charged such an astronomical figure for what seems like simple manual work. In justifying this sum during his testimony, Dijeng said that the work 'was not simply done with slashers and axes.' According to him, consultants from South Africa had come over to provide specialised training for the 80 labourers he engaged; the removal of the waste was sub-contracted; pressure from GCC compelled him to increase his work gang to 120; and, the work was made difficult by heavy rainfall that turned the work area along river bed into 'a swamp.'

Hit with a P24 million invoice it had never expected nor budgeted for, the GCC sought legal advice from Motumise & Moeletsi law firm and acting on this advice, its finance committee resolved that Daisy Loo's claim be repudiated as it had no contractual basis. When the company turned down GCC offer to pay P100 000, the matter was taken for arbitration. What Mabua said during the arbitration came back to haunt her when she took the stand at the trial court.Under cross-examination, she stated that she stood by what she had said at arbitration.

There she had said that instructions to clear the Segoditshane River bed were given under her authority. She admitted having said that she had authority to instruct Daisy Loo to do grass-cutting and debushing from Bull & Bush restaurant up to the Gaborone Game Reserve. She also admitted that there was no mention of the work being stopped when the P100 000 ceiling was reached.

Only the invoice sum (not authorisation to do work) was the issue at the arbitration. Mabua acknowledged that instructions for the job were issued under her authority and that in writing the letter instructing Daisy Loo to start work, Abbey was acting under her authority.

One of the prosecution witnesses was Mothusi Leshope, GCC's Senior Parks Officer, who told the court that he had refused Mabua's instructions to supervise the bush clearing along Segoditshane. His reason was that he was not involved in the inclusion of bush-clearing works in the tender and that proper procurement procedure had not been followed. Under questioning from an Advocate Duke at the arbitration, Mabua had conceded that she had seen that bush clearance over a 'large vast area' was taking place along Segoditshane.

Walia says that from this exchange it is clear that Mabua was aware that work was being done along the river and that 'the work was authorised, either personally by PW 5 or on behalf of the Council.'In his own judgment, then magistrate Nyamadzabo acknowledged that there were inconsistencies in Mabua's evidence but he emphasised that 'importance must be attached not to what was said but to the context in which it was said.' Nyamadzabo rejected Leshope's evidence, saying that he had an axe to grind with Mabua. He then found that Mabua was unaware of the works along Segoditshane River until she was presented with the P24 million invoice. He deemed her evidence to have 'greater probative value' as she had been subjected to cross-examination.

'The sum total of the Learned Magistrate's analysis of the state witnesses is that he found each one of them to be a witness of truth, even if some witnesses's evidence had to be considered in the context of what they had said.As regards the appellants, he found each one of them testifying to be untruthful. Of those who did not testify, he found that their refusal to testify in the face of strong evidence against them entitled the court to make adverse findings against them,' Walia says in his judgement.

Nyamadzabo had found that even if Mabua might have had the power and authority to issue instructions to Daisy Loo, 'she was categorical in her evidence that she did not, as a matter of fact, either personally issue those instructions or knew about them until only after the invoice of P24 million was presented to her.' To the contrary, Walia found that evidence shows that Mabua was less than categorical, admitting at the arbitration hearing that she was aware of work proceeding along Segoditshane.

In the final analysis, Walia states that against all evidence, Nyamadzabo 'went out of his way to make positive findings of credibility of PW 5's evidence. Now, ordinarily an appellate court will not readily interfere with the trial court's findings of fact or credibility but such findings will be questioned where they are manifestly wrong.

I have little hesitation in finding that the Learned Magistrate erred in finding PW 5 to be a credible witness and unceremoniously rejecting all evidence at odds with PW 5's. I find therefore that despite her protestations to the contrary at the trial, PW 5 was aware of the works proceeding at Segoditshane riverbed in the weeks following February [2005] and that her evidence that she only became aware of such works when the invoice for the P24 million was placed before her is devoid of truth.'

The genesis of the matter would be December 2003 when Mabua received a letter from then Vice President Ian Khama raising concerns about the dirtiness of the city. She referred letter to Sithole who informed her that of all the cleaning companies under contract to the Council, only Daisy Loo was capable of undertaking additional work.