Wednesday, September 23, 2020

State ordered to produce defence witnesses’ statements in Nchindo case

Gaborone Chief Magistrate Lot Moroka yesterday ordered the state to give the defence all witnesses’ statements, including the statement from President Ian Khama.

The state was also ordered to give the defence witnesses’ statements from former President Festus Mogae and his cabinet as well as from non-Cabinet members, such as Nicky Oppenheimer, Michael Pinard and Lobatse High Court judge, David Newman.

The Chief Magistrate also stressed that if Khama does not make a statement, then Count 3, in which it is alleged that he was given false information pertaining to the acquirement of a plot in Gaborone will fall away.

Moroka made this order after an application for the statements was made by advocate Peter Hodes who is representing former Managing Director of Debswana Louis Nchindo, his son Garvis, Joe Matome and Jacob Sesinyi in a case they are charged with corruption and fraud.

Making the order, Moroka conceded that it was indeed true, as was claimed by Chief Prosecutor Kgosi Ngakayagae, that the state is not under any legal obligation to give the defence state witnesses’ statements, but that he thought it would be a good thing to do so after the Court of Appeal judgment, which had directed that such statements should be given to the defence in a case of Wassim vs the State.

The Wassim judgment, he said, was made by two Higher Courts, the High Court and the Court of Appeal, to which they look upon for direction.

Besides giving the defence witnesses’ statements, Moroka also said that the state should tell the defence whom amongst Mogae’s Cabinet they wish to call as witnesses and who they do not intend to call so as to give the defence access to such witnesses.

He said this after dismissing the state’s submission that all Mogae’s cabinet witnesses were state witnesses and the defence could not have access to them.

On the other issue brought by the defence in their application that the charges brought against his clients were vague and did not disclose the particulars of the alleged offences in the 36 charges against their clients, Moroka said that he has found that not to be true in all but two charges in count 8 and 9 only.

In these two counts, he said, the state needs to make the charges clearer than they have done so far.

The Chief Magistrate said that all the other 34 counts are clear and that he did not think they needed to be made clearer than they are currently.
He also said that he did not agree with the defence’s submissions that charge the sheet should not just state that a crime was committed in Gaborone, for instance, but that it should provide more details.

Moroka also said that he did not see how the charges, as they stand, would prejudice the accused persons of a fair trial.

After the trial was adjourned, Ngakayagae said that they would do all to comply with court orders.
The trial was postponed to 6 July 2009.

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