After failing to present an application for bail pending appeal at the Gaborone Regional Magistrate Court, lawyers acting for Joe Matome and Garvas Nchindo have now been granted leave to do so.
It is understood that the appeal application (for both Matome and Nchindo) and the bail pending appeal (for Matome) will be filed in the Lobatse High Court today.
Their grounds of appeal maintain that the trial magistrate erred in finding that the presentation to the former magistrate contained false information.
They insist that former President, Festus Mogae, could not remember whether Matome ever attended the presentation but merely recalled some white officials were doing the presentation.
Further, they argue that the trial magistrate failed to take due cognisance of the fact that the process of allocation of Plot 55720 was finished in July 2000, six months before the presentation to Mogae in December 2000.
Mogae could not have supported the allocation of 55720 to TDC after that presentation or played any role in the allocation, even if he had been minded to do so.
All of the officials involved in the allocation of Plot 55720 to TDC testified that the process was detailed, thorough and well considered".
In their grounds, they state that neither president Mogae nor any other member of cabinet, save for Nkate, played any role in the allocation of Plot 55720.
The appellants are further aggrieved that the evidence of Nkate was not taken into consideration. They maintain that the magistrate's opinion of Nkate is not supported by the paper evidence before court.
In treating evidence, they argue, Magistrate Moroka erred by criticising the submissions on behalf of the appellants but failed to acknowledge the chronological, sequential and thematic analysis of the documentary evidence.
The appellants further submit that the magistrate erred in finding that Matome and Nchindo were guilty of forging the TDC resolution when there was no evidence or any other thing to intimate that either Nchindo or Matome ever saw the resolution in question or were at least aware of the date of its passing.
The appellants further deflate the conviction of conspiracy saying the magistrate erred in failing to consider the import of the state's case.
"The state's own case was that the late Louis Nchindo instructed, rather than 'induce' Matome to rig the tender for Plot 3084 in his favour, and that Matome complied with that instruction. Legal authority makes it clear that conspiracy involves an agreement and not the obeying of instructions by a subordinate".
On the count regarding the receipt of stolen property, they contend that Moroka erred in failing to consider whether Golconda received Plot 3084 knowing that it had been unlawfully obtained, and more particularly, in failing to consider whether Golconda knew at the time of receiving the plot, it had been obtained by conspiracy.
On the count of cheating the public revenue, the appellants argue that even if it were to be accepted that there were two transactions, each of which required transfer duty to be paid, the transfer duty of P 99,650, which was paid for Plot 3084, had in fact been paid for Golconda, rather than for the late Louis Nchindo.
They maintain that there could be a complaint that Golconda, as opposed to the late Nchindo, cheated the public revenue.
The appellants had submitted a 28-page appeal in which they enunciate their grounds of appeal. It is widely expected that their application for bail pending appeal in respect of Matome will come before court next week.