Sunday, June 16, 2024

CMS convicts appeal against sentence and conviction

Six of the seven convicts found guilty of defrauding the Central Medical Stores of P21 million have appealed against both their sentences and conviction.

Among the six convicted who were sentenced to various prison terms by now Lobatse High court judge Lot Moroka are Norman Maja, Bushy Nthibo, David Tumagole, Patrick Cole and Abram Marumo.

They were all represented by Duma Boko.

In the grounds of appeal prepared by their lawyer, 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 of that 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 particularize offense 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 “actus reus”.

The correct approach and indeed the approach painstakingly urged on the court by the defence, Duma 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 on behalf of 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.


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