Saturday, December 3, 2022

Of courts, housekeeping and two bad cheques

A Gaborone woman recently appeared at Broadhurst Magistrate court accused of making out two bad-cheque payments to settle a payment for a house she bought under Pennywise Investments.

Represented by Attorney Tema, Gaone Ferguson pleaded not guilty to the charge of making a bad cheque of P25 189 on the 30th of July 2011 to Nyamambi Attorneys who were, at the time, collectors and advisers of the plaintiff, Onkabetse Ketshabile. Ferguson went on to plead not guilty to the second charge of making out another bad cheque of P20 000, again to Ketshabile on the 29th of September, 2011.

The proceedings in the court were not smooth sailing as the beginnings of the trial were tainted by the exchange of words between the defending attorney and the prosecutor.

The prosecutor, Relentse Mosarwane, was making a move for the defendant to answer for both herself and the company she was representing at the time of the offense. Ferguson is said to have been acting as the signatory of Pennywise Investments, a company from whose account the cheques were made from.

To this the defense counter-attacked by saying that her client could only represent herself and not the company.

Mosarwane then went on to quote Penal Code Section 4 which he said states that where the company commits an offence, it’s representative at the time is the one that is liable to answer for it, be it the company driver. He went on to give suggestions on what the defense lawyer could do to argue his case regarding the fact that his client is not liable for the offense of the company.

He said the defense lawyer could cross-examine, for example. To which defense lawyer Tema stood up and objected.

The verbal brawl went on till the judge clearly stated that she is not pleased by the whole display. Using court language, she said that she took offence in the conduct of both attorneys as they were both behaving as if they were not experienced attorneys.

To which Tema responded, “As the court pleases”; since he had also taken offence to what the prosecutor had said to him.

“There is no need for me to be taught by my juniors what I should do. I have been doing this for a long time. I take offence,” said Tema.

“You are acting like brand new attorneys,” the judge fired back. “I am also taking offence.”
“As the court pleases,” Tema responded.

Tema was annoyed by what he said was lack of preparation on the part of the prosecutor. He said that the case had been on-going since 2011 and it was only on the 3rd of July that they were presented with the charge that the prosecutor was going to trial with.

Giving the events of the year of 2010 and 2011, the plaintiff said that she had advertised a house to which Ferguson took interest in.

Onkabetse Ketshabile, 38, of Gantsi, said that the house was initially advertised for P1.5 million, but they ended up agreeing on P1.2 million. She said that it was agreed that she transferred the names of the house from herself to Fergus Ferguson, Gaone Ferguson’s son who was the owner of Pennywise Investments at the time. She said that it was agreed that after the Deed of Agreement had been done, the funds would be transferred into her account. When the remaining balance of P112 715 had stayed for a while without being cleared that’s when Ketshabile went to seek the advice of Gaorekwe Attorneys, who issued a letter of demand.

“I tried to give the demand letter to Gaone, but she said she knew how much she owed. And even up to today I haven’t given it to her,” Ketshabile said.

She added that Ferguson later paid her P47 000 using two different cheques. Ketshabile said that she further sought the services of Nyamambi Attorneys when the balance was not cleared once again.

And that’s when the first bad cheque was made to the amount of P25 189 on the 30th of July 2011.
And later she was given another cheque of P20 000 at the end of September 2011.

The court was adjoined when the judge suggested that Ketshabile take a breather as she was jittery and nervous towards the end of the testimony.

Upon returning to court, the prosecutor produced a copy of the cheques that were made, which the defense ridiculed, saying that her client would not be prosecuted on the basis of copies. He said that the prosecutor needed to produce originals.

“My client cannot be prosecuted on the basis of copies. This shows that the prosecutor was not prepared all along,” said Tema.

The prosecutor responded by saying that the bank, FNBB, would not give out the originals willingly but added that he would make an official request for the benefit of the case.

The defense did not get a chance to give its side as the case was postponed to the 29th of November 2013. And bail was extended till then.

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