Wednesday, September 30, 2020

Court of Appeal overturns Dibotelo judgment in Nchindo case

In yet another interesting twist in the marathon corruption case in which former Managing Director of Debswana Louis Nchindo and five others are facing corruption charges, Court of Appeal judges have dismissed a judgment passed by Lobatse High Court judge Maruping Dibotelo that the state had provided Nchindo and his co-appellants with enough particulars of the charges they are facing and ordered the following:

* That the appellants be provided with the 37 particulars they requested on January 19, 2009
* That the appellants be provided with the list of witnesses the state intends to call as witnesses.
* That they furnish the following documents or state under oath that the state, through the Directorate of Public prosecution, does not possess them.

The schedules listed are:
(1) The schedule referred to in second last paragraph of Michael Keenan’s statement, with any other attachments.
(2) Entire report of control risks finalized on 18 March 2008.
(3) Notes transcripts of seventy interviews referred to on page 2 of Keenan’s statement.

(4) to permit appellants’ legal representatives to consult judge David Newman, Nicholas Oppenheimer for purposes of preparing for trial as requested but that such consultation takes place in the presence of DPP representatives . That these orders should be carried out on or before February 28, 2010 and further that the respondents should pay the costs, including those of two instructed counsels and instructing attorney.
Upholding the appeal , the judges concurred with appellants’ lawyer advocate Peter Hodes in his submissions that former Gaborone Chief Magistrate Lot Moroak’s order precluded them from having a fair trial in pending criminal charges against them as provided for in section 16 of the constitution.

They disagreed with DPP’s submissions that the state had generously furnished all the particulars in the indictment with respect to each count and that the further particulars they sought were not sanctioned by law or procedure. On these basis they said that this could quickly be disposed of because, firstly, section 146 (1) and (2) of the act cover the point in no uncertainty as it states that the court may either before or at trial, if it thinks fit, direct particulars to be delivered to the accused on any matter alleged in the indictment or summons and may, if necessary, adjourn the trial for the purpose of delivering of such particulars. Further that it states that such particulars shall be delivered to the accused or to his counsel or to his attorney without charge and shall be entered in records and trial shall proceed in all respects as if indictments or summons had been amended in conformity with particulars.

On the issue of fair trial also raised by the appellants which the appellants’ lawyers were arguing their clients were being denied, the judge said that it is fundamentally important at the onset to recognize appellants entitlement to the relief they sought needs to be tested against section 10 (1) and (2) of the constitution which guarantees a fair hearing.

On the fundamental issue of request for further particulars of charges, the judges said that it is common knowledge that former Gaborone Chief Magistrate and current Southern Regional Magistrate Lot Moroka has approached the issue of whether further particulars of the offence should be furnished through prism of section 128 and 131 of Criminal Procedure and evidence Act . That he had committed fundamental errors in his judgment because he had incorrectly assumed that the test of whether further particulars should be furnished under section 146 is to determine whether the summons or indictment complies with section 128.

But that as advocate Peter Hodes for the appellants had correctly submitted, the fact that a summons complies with section 128 does not mean that an accused is not entitled to further particulars under section 146 . That the correct approach is to have particular circumstances of each individual case, further that Moroka had wrongly approached the matter on the basis that any further particulars should actually be incorporated in charge sheet and that charge sheet should be amended every time further particulars are requested.

The correct approach, they said, is to determine the question through the prism of the constitution as the supreme law. That in this particular case the correct approach would have been to apply section 146 of the Act in the context of subsection 10(1) and 10 (2) of the constitution. That this was the litmus test of the case and that on conclusion they found that Moroka had failed to apply the correct test when assessing whether further particulars requested should be furnished and that it is regrettable that High Court had done so as well.
Peter Hodes, assisted by Khupe, represented Nchindo and his co accused whilst Matlhogonolo Phuthego and Kgosi Ngakayagae represented the DPP.

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