Nchindo case postponed to March
GIDEON NKALA
Staff Writer
| Friday February 1, 2008 00:00


Although the case has generated huge public interest, yesterday's events seemed like too much shuffling of the feet with no meaningful movement. Not much was achieved on the day.
The prosecution withdrew two charges that had been leveled against one of the suspects, Najmudin Kader. Kader together with Nchindo and Joe Matome face charges of conspiracy to defraud by allegedly conspiring with each other, by deceit, to affect the market price of plot 3084, in Gaborone.
The prosecutor, Matlhogonolo Phuthego informed the court that the prosecution would alter the charge sheet to reflect the withdrawn charges. He indicated that it was highly probable that the charge sheet would grow longer with additional charges made against the accused.
The state indicated that they did not want to proceed beyond the reading of the charges to the accused, who include former Debswana group secretary Joe Matome, former communications chief Jacob Sesinyi, and Tourism Development Consortium, a company co-owned by Nchindo and his son Louis. The defence team led by senior counsel Peter Hodes argued that it would be a complete waste of time to read charges to the accused since they were not going to plead. He said the DPP has not availed some documents such as witness statements as required under the law. Without these documents, he told the court that his clients would just keep quiet when asked to plead.
'It is a pointless exercise,' he said.
For the better part of the brief deliberations, Kgosietsile Ngakaagae was the man on the mound for the prosecution. He said they want to give the defence all the statements and documents they need provided that certain issues are cleared first.
One of the issues is whether the Collins Newman law firm had the legal mandate to receive the statements on behalf of the people that 'they purport to represent'. He said the other reason they are temporarily incapacitated to provide the documents is that they are yet to conduct a 'limited investigation' which can be compromised by full disclosure. He pleaded with the defence to exercise a little patience saying the investigation would not be long.
That notwithstanding Ngakaagae said there was nothing in the statutes that would compel the prosecution to produce the statements on demand. He took issue with Hodes' assertion that the defence need the witnesses' statements before his clients could plead. He said the accused do not need the statements to plead.
'Pleading has nothing to do with whether they have evidential material,' said Ngakagae citing the case of Ahmed Wasim which was quoted in court as the mantra in Botswana case law in matters of releasing witness statements.
The DPP attorney said the Wasim case was very specific in that it explicitly states that the statements should be made available to help the defence to prepare its case and not to plead. At that point the trial magistrate, Moroka intervened. 'Don't you think they would need to inform themselves on the totality of all the information before they could plead? Ngakaagae stood his ground and maintained that the course and nature of the evidence is spelt out in the Criminal Procedure and Evidence Act. He said the statement and particulars of offence had enough clarity as to the nature of the charges leveled against the accused.
At the end of his submissions, he said that they are not pushing for the accused to plead immediately. Hodes then rose to respond to some of the issues raised by the prosecution. When he spoke the Cape Town based advocate gave a peep into the type of pugilist he will be in the courtroom.
'I am glad to hear a bit of common sense right at the end-that we will negotiate,' he said in his brusque style. But this was not all. He took liberty to remind the prosecution that its attempt to dislodge Collins Newman Attorneys from the case would be bitterly fought. 'Collins Newman Attorneys do not purport to represent the accused. They represent all the accused and this would be so until the highest court in the land says otherwise,' Hodes said. He added that they are prepared to seek redress in the Court of Appeals on what he said were constitutional matters. The prosecution had earlier informed court that it will make a formal notice for Collins Newman to recuse themselves from the case. This matter will be deliberated when the two parties meet on March 28.
It is possible that when the case resumes, the prosecution would have added more charges and possibly even cited Collins Newman as witnesses or suspects. 'In an earlier correspondence to the law firm the DPP had warned thus; 'We wish to put you on notice that your law firm as an entity and its officers (as individuals) are potential state witnesses in the matter at hand. The DCEC shall shortly approach you with regards to such matters. We advise that this is a tentative position, which may change upon the ascertainment of the nature and extent of your law firm's business with Tourism Development Consortium and your other clients. We reiterate that we are yet to decide if your law firm and its officers' roles regarding this case will go beyond that of mere witnesses.' Hodes had volunteered some piece of information in court perhaps to the benefit of DCEC investigators.
'We will not be prepared to be interviewed by anybody,' said the advocate. After the issues had been deliberated, the court decided against the advice of Hodes that it would be a waste of time to read the charges to the accused when they were not going to plead.
'It is important for the accused to know the extent of the accusations and to know why they are here,' said Moroka, ordering that the voluminous charge sheet be read to the accused.
The order was obeyed.
The prosecution brought a battalion of lawyers, led by DPP boss Leatile Dambe, her deputy Phadi Solomon, chief prosecution counsels Matlhogonolo Phuthego, Kgosietsile Ngakaagae and Bafi Nlanda.
The defence is led by Hodes assisted by P.B.J Farlam under the instruction of attorney Parks Tafa, a senior partner at Collins Newman attorneys.