Sunday, May 28, 2023

DPP asks Court to dismiss Nchindo appeal

The Directorate of Public Prosecution’s Matlhogonolo Phuthego recently asked the Court of Appeal judges to dismiss with costs an appeal brought by former Debswana Managing Director, Louis Nchindo, and three other men he is facing charges of corruption with, his son Garvas, Jacob Sesenyi and Joe Matome.

Their appeal follows after Lobatse High Court judge, Maruping Dibotelo, dismissed their appeal relating to their charges, which they alleged did not disclose their offences adequately and some statement which they alleged they had not been furnished with.

In his submission on the issue of documentation and witnesses’ statements which the defence lawyers had submitted they had not been given, Phuthego said that the fact that the accused persons are entitled to material in possession of the state does not mean that they are entitled to anything and everything, relevant and irrelevant , privileged and not privileged.

That notwithstanding, they had given appellants (accused) full discovery (relevant and irrelevant). He further submitted that, in terms of Wassim Ahmed case, the state has to deliver to the defence what is available and not what is simply wished or imagined by them. That further, in terms of that case, officers’ notes are in any case discoverable and that the state had repeatedly stated that it does not have in its possession the transcripts of the alleged seventy interviews and that, despite the searches they had made at the offices of Directorate of Corruption and Economic Crime, they had found no transcripts of the alleged interviews and had also not found schedules.

Phutego said that they could not give to the appellants what they do not have. Further that there is no reason why this aspect should further delay the trial and that their witnesses, such as Keenan and investigating officers, would give evidence at the trial and that their reports and statements had been supplied to the appellants.

On the issue relating to the statements made by President Ian Khama which the appellants’ lawyers had submitted, the state had failed to obtain from Khama ending with the withdrawal of count 3.

Phutego submitted that the DPP had not failed to obtain a statement from Khama but that contrary to that, it is their position that Khama is a competent and compellable witness irrespective of whether or not he had furnished a statement and that he could be subpoenaed on the basis of documentation before the Court that may require clarity by him.

Count 3, he further submitted, was withdrawn in order to subtract the President and his office from the approach the defendants promised to be a long trial riddled with mudslinging but that they are capable of obtaining a statement from him at anytime if they wish to use him in the trial or simply to cause him to be subpoenaed.

Meanwhile, Private advocate, Moatlhodi Marumo, on Thursday submitted that the Directorate of Public Prosecution is empowered by the Constitution to either continue or discontinue criminal proceedings against anybody for crimes ranging from theft , financial crimes or any other complex crimes.

Marumo said this during submissions in an appeal brought before the Court of Appeal by former Managing Director of Debswana Louis Nchindo, his son Garvas and Joe Matome.

The appeal is against judgment passed last year by Lobatse High Court judge, Lashkavinder Walia, which stated that there was nothing unconstitutional about a restraining order sort by the DPP against Nchindo and other appellants.

Marumo further submitted that the Constitution is superior law of the country and that it is used to benchmark statutory laws that can be amended at any time when legislators feel it was necessary to do so. The restraining order, he further submitted, is meant to preserve the plot as an exhibit just like it happens with other properties gained from alleged criminal activities.
Proceeds of Serious Crime, he further submitted, states that goods recovered from suspects should be kept as exhibits.

He gave the example of when a person is caught in possession of diamonds. If he is allowed to keep them, he could then process them into jewellery and this would kill prosecution evidence.
The restraining order, he submitted, is designed to make sure that there is no disruption of such proceeds.

Marumo dismissed the argument by the appellants’ lawyer, advocate Peter Hodes, that the restraining order would infringe on the appellants’ right to fair trial and that Nchindo would suffer financial loss, saying that the appellants are only concerned about Nchindo’s personal circumstances instead of objectively analyzing the constitution.

He further said that the appellants or accused should wait for their day of trial where the fairness of the constitution and statutory laws would be put to test.

For his part, Hodes maintained his initial submission at both the Magistrate and High Court that the restraining order violates the right to fair trial. Further that the DPP Director, Leatile Dambe, does not have power to ask for restraining order as she was the prosecutor in the criminal trial.

This matter, he further submitted, should have been launched by the Attorney General or her agents. This, he said, was so because the matter had emanated from a civil matter and that the DPP had improperly launched it.

He also disagreed that the order was for preserving the plot to be used as an exhibit in criminal proceedings against Nchindo and others and wondered if the order also affected the title deed of the property.

Hodes reiterated that the order would adversely affect his client as he would suffer financial ruin if it were granted.

Judgment on this matter as well as the one regarding another appeal they had brought on grounds that they had not been fully furnished with particulars of charges they are facing will be passed next week Friday.
The three accussed are facing 33 charges of corruption.


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