Saturday, May 30, 2020

PROSECUTION, DEFENCE IN STALEMATE OVER NPF CASE

Plans to commit suspects in the National Petroleum Fund (NPF) case have been stalled as the defence and the prosecution reached an impasse on which legal process to follow.

The case which started with the parties engaging in a testy back and forth had a humorous ending when Veteran lawyer and Deputy Director of Public Prosecutions Wesson Manchwe was asked by the Village Chief Magistrate Goodwill Moakofi to offer an insight into the matter to break the impasse. This was after both parties had failed to compromise on how to proceed with the case.

At the centre of the impasse was a voluminous bundle that was submitted before the court by the prosecution. The defence argued that such a bundle had not been served on them despite the fact that the prosecution was applying for the accused to be committed to the High Court.

Defence attorney Kgosietsile Ngakaagae was the first to draw blood when he accused the Directorate of Public Prosecutions (DPP) of abusing the court process.

He argued that it could not apply for committal of accused persons to the High Court without a charge sheet having been read out to them.

He also argued that the whole idea that the charge sheet be read out before the accused persons are committed to the High Court was to ensure that they “exercise our options” adding that “the accused persons are entitled to be committed on charges that they understand. The Court should not rubber stamp prosecutorial decision.”

“We are entitled to give this Court reasons why committal cannot be done. They (The prosecution) are having conversation with the Court through these files behind accused persons’ backs,” said Ngakaagae. He further said the accused persons should have sight of copies of witness statements so that they could decide which statements “cannot go in as hearsay” adding that as the defence they had not seen the committal bundle.

“They say it doesn’t even matter that the charges have been read or not. Your Worship must read the bundle and be satisfied that the bundle has admissible material. The reason our learned friends do not want that is because they know that challenges are coming,” he said.

Another defence attorney, Unoda Mack, said he was at a loss why the prosecution was applying that his clients be committed to the High Court. He said records showed that his clients had been committed to the High Court on 21st August this year before the regional magistrate. He said the committal was in relation to a charge sheet dated 2016. On 21st August, he argued, the prosecution committed his clients based on a charge sheet dated 2019 again for the same charges.

“You served another charge sheet…You have tried to introduce these charges before but there was a court order that declined the charges…I don’t understand why they have recycled the same charges against the accused…What process is that? We cannot ignore that.”

He added that “I don’t know what that bundle is about. I only know about the one that contains counts. The only proper thing is to be served with what they have here,” said Mack.

He added that the “counts here are impermissible in law. My clients have been committed on the same offence. I don’t think we will have another committal.”

For his part, another defence attorney Busang Manewe told the court that since his clients were not part of the NPF case, which had recently been committed to the High Court, they were not affected by the issues raised by the rest of the accused persons and therefore he could not offer any submission to the issues raised.

Pascal Mhandu from the DPP had initially applied to the Court that the case be committed to the High Court. According to Mhandu there was nothing in law that compelled the prosecution to read out the charges before the magistrate before they were committed to the High Court.

“My Lord, the accused are aware why they are before this court because they have since been served with copies of the charge sheets,” he contended. He added that the charge sheets would be properly read out to the accused before the High Court.

But the day belonged to Manchwe who left the Court in stitches with his humorous submissions. He concurred with Mhandu that the position to apply for committal of the accused persons to the High Court was informed by Section 96(1).

Rocking back and forth on his feet, Manchwe who was visibly in his element said the DPP director is empowered by the section in question to serve any accused person with anything for trial to the High Court.

“There is no need to serve the accused persons with copies of statements from witnesses. These statements can be served on accused persons at the same time as indictment. How these statements are served is irrelevant,” he said.

At this stage, the Moakofi interjected and asked Manchwe to consider a scenario where an illiterate person comes to court and there is no need to read the charge sheet to him or her and only commit him or her to the High Court.

“In this case we are dealing with people who are literate and who have been served and understand why they are here. Let’s assume that illiteracy does not mean stupidity,” Manchwe shot back. Moakofi who was trying to figure out how to proceed, before asking Manchwe to give an insight into how best to resolve the impasse had also initially asked the defence and the prosecution to choose as to which best process to follow. 

Responding, Manchwe again brought the courtroom into laughter when he informed the Magistrate that “I’m not yet done with the issue of choice unless if you have changed your mind” after listening to his insightful presentation.

Moakofi had also informed the parties that he stood in for the substantive presiding officer, Magistrate Masilo Mathaka for purposes of arraignment only and therefore could not decide on any other issues.

At the end, both parties agreed that the best solution was that the matter be referred to the substantive magistrate Masilo Mathaka. In his ruling, Moakofi agreed that the “best way is to refer the matter to the substantive Magistrate who will decide the propriety of committing you to the High Court and resolve issues raised by the defence in relation to copies of witness statements and notices.”

The accused persons, Kenneth Kerekang, Bakang Seretse, Sadique Kebonang, Zein Kebonang, Mogomotsi Seretse and Kago Stimela, among others are charged with money laundering.

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Sunday Standard May 24 – 30

Digital copy of Sunday Standard issue of May 24 - 30, 2020.