It did not take long for the legal battle to catch fire. “Sit down! Shut up! Shut up!” Chief Prosecution Counsel, Kgosietsile Ngakaagae shouted at Advocate Craig Webster.
The South African Advocate had interrupted Ngakaagae’s cross examination in a bid to rescue former minister and state witness Jacob Nkate from a barrage of questions.
The feisty prosecutor seems determined to fire off verbal sling shorts to fell the giants of the government enclave. In his replying papers, Ngakaagae said former Minister, Boometswe Mokgothu will be called on to the witness stand and will be put on the spot with respect to his denial vis-├á-vis the documentary evidence in the docket. “No witness will get away without explaining their role even if it would take the most extreme measures of such a witness being declared hostile and vigorously cross examined by the prosecution,” warned Ngakaagae.
But can this David versus Goliath story be as long on success as it is on drama? An answer, of sorts, should emerge over the next few days from Lot Moroka’s regional magisterial court, where the Nchindo case is generating drama and excitement. In one corner is a hulking mass of political and legal muscle dominated by Nchindo’s battery of advocates, cabinet ministers and Botswana’s most influential law-firm, Collins Newman & Company.
Not exactly cowering in the other corner is Former President Festus Mogae, Assistant Director of Public Prosecutions Matlhognolo Phuthego, State Counsel Gopolang Tlhabologang and the take no prisoners Ngakaagae. For most Batswana who have been following the marathon case, trying to read the runes on the government’s decision to prosecute the former Debswana Managing Director and his associates, the signals are baffling.
It is a bare-knuckle clash between shifting alliances: the starkest being President Lt Gen Ian Khama who raised eye-brows when defence lawyers revealed that he had deposed an affidavit in favor of the late Louis Nchindo, apparently stating that there was nothing wrong with how Tourism Development Consortium (TDC) acquired its controversial piece of land. This affidavit however is yet to be filed.
Eye-brows arched further last week when Khama’s ally and former Minister, Jacob Nkate who is the state’s star witness switched sides on the witness box and closed ranks with other cabinet ministers around Nchindo. Two years ago Nkate signed a statement before former Director of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katlholo detailing how he had been misled into allocating the controversial piece of land to the Tourism Development Consortium.
“It was at all times my understanding that the consortium was a Debswana subsidiary and that the investment was to be made by them.” He further wrote: “the application in respect of which I received a recommendation and proceeded to make an allocation of 70 hectares was to my mind clearly an application by the consortium which I understood was a Debswana group.”
Nkate stunned the prosecution during cross examination when he did the somersault stating that to his understanding Nchindo applied on behalf of Tourism Development Consortium not for Debswana. “I can’t recall that it was a Debswana application”, he said.
It has become a familiar story among former and current Cabinet ministers who are now reversing their decision to take the witness stand on the side of the state. Former Minister, Tebelelo Seretse who was initially slated as a state witness to testify that Nchindo had misled Cabinet into approving the Tourism Development Consortium land allocation has gone back on her initial decision and has already communicated her change of heart to the DPP.
Former Minister of Mineral Resources and Water Affairs, Boometswe Mokgothu, listed as a state witness, has allegedly told the DPP that he has forgotten details of the controversial tourism project.
A whiff of political maneuvering began to set public tongues wagging, when it emerged two weeks ago that Minister of Justice, Defence and Security, Dikgakgamatso Seretse whose portfolio responsibilities include the Directorate of Public Prosecutions; Foreign Affairs Minister and former Attorney General Phandu Skelemani and former Minister Daniel Kwelagobe who is listed as a possible state witness submitted affidavits in an application to the High Court saying Nchindo did nothing wrong and that the state has no interest in the ongoing criminal case
In his answering affidavit, Ngakaagae says it is disappointing that Minister Seretse “finds what the DPP considers to be a case of extreme criminality to be a matter of no concern to the government.”
Former President Festus Mogae on the other hand states that flowing from the presentation made to himself and his cabinet, he was reasonably caused to understand the project on which they were being briefed to be a Debswana project and that this was an understanding shared with his Cabinet of Government Ministers.
Mogae states that the substance of the Cabinet briefing was that tourism Development Consortium was a vehicle whereby “Debswana intended contributing towards the diversification of the national economy of Botswana through the development of world class tourism facilities.”