Gaborone lawyer Parks Tafa on Friday questioned the credibility of a judgement recently passed by outgoing magistrate Lot Moroka against Joseph Matome, Garvas Nchindo and his family companies of Tourism Development Consortium and Golconda, saying it has two different versions.
Tafa submitted that the first version was read out in an open Court on 11 October when the two accused persons were convicted; and the second one which they got from the Court but which differs on many aspects with the one which was read in Court.
That there are two versions to the judgement, he said, is of great concern because his clients have been remanded in custody as a result of the judgement whose credibility is questionable.
Worse, Tafa said, the two judgements are not similar, not on one page but on several pages.
The law, he submitted, states clearly that judgements cannot be changed or amended after judgement has been passed and that they can only be corrected.
As Tafa made his submissions on the issue, Lobatse High Court judge, Steven Gaongalelwe, interjected and said that though he was not there, the explanation could be that Moroka had written the judgement by hand then given it to his secretary to type and the secretary omitted some parts, which Moroka then corrected after having read the judgement in Court.
Gaongalelwe then asked Matlhogonolo Phuthego, the Assistant Director of the Directorate of Public Prosecution, to explain what had happened and he said that what was missing in the judgement can be easily corroborated by documental evidence they had brought before the Court.
He further submitted that there was nothing wrong with the judgement having been corrected as the law allows that.
Turning to the judgement, Tafa submitted that the conviction was totally not based on proven facts and was therefore a nullity.
For instance, he submitted that the first two counts, which allege that Matome had made a misrepresentation to former president Festus Mogae, had not been proven because, when giving evidence, Mogae had failed to say for certain that Matome was present in the meeting where Matome is alleged to have made the misrepresentation.
All what Mogae said, Tafa said, was that he was not sure if Matome was present but that he could remember that there were some two white men in the board room. This, he says, makes conviction on the count unsafe.
Tafa also submitted that the count of forging a company resolution also does not hold water as it is clear that the resolution was prepared by Collins Newman employees and not the two convicted people. What is in the resolution, he submitted, were only the signatures of the late Louis Nchindo , Garvas Nchindo and Matome’s name as company secretary.
To convict the two on this charge, Tafa said, was unfair as it is clear from the evidence that the resolution was made by employees of Collins and Newman and not the convicted persons.
On a count of fraud concerning the sale of a property that used to belong to Debswana, which states that Matome had fraudulently made sure it was won by the late Nchindo after rigging the bidding process, Tafa said again there has been no evidence produced by the state to prove the charge and that Matome had not tempered with any letter concerning the prices of the property in question.
Bearing all the above, Tafa said that he was convinced that another Court may have passed a different sentence and that their conviction was unsafe and that his clients have suffered prejudice.
Reacting to submissions by Tafa, Susan Mangori, of the Directorate of Public Prosecution, submitted that if Tafa’s clients had suffered any prejudice at all, it was out of their making because they had told the Court that they will only be able to make their mitigations on the 27 of October.
She also submitted that, after convicting the two, Moroka had the discretion of whether or not to remand them.
In reaching such a decision, she said that he was led by the seriousness of the offence.
Moroka, she submitted, has the powers to do that as a judicial officer. Further that the presumption of innocence stops to exist as soon as one has been convicted.
The decision on bail will be delivered tomorrow (Monday).
