Gaborone Chief Magistrate, Lot Moroka, found himself in a difficult position when he had to frequently calm down tempers amid heated exchanges between two teams of lawyers in a high profile case in which retired Debswana Managing Director, Louis Nchindo, is facing up to 35 counts of criminal charges.
From early on, the tempo of the case rose high as it became all the more apparent that neither side was going to give ground to the other.
As it turned out, Nchindo’s corner had made substantial reinforcements on their team while the State burst on with an early determination to get things done their way, especially with their forceful call to get Nchindo’s lawyers of choice (Collins Newman & Company) disbarred from representing him on ethical grounds.
It became clear that the two teams were headed for an untidy confrontation when the prosecution team advanced technical arguments casting doubts on the authenticity of qualifications of the Commissioner of Oaths used by Nchindo’s lawyers in their affidavits.
A Senior Counsel, Chris Laxton, representing Collins Newman and Company did not help the situation when he dismissed the State argument as “silly” and “schizophrenic.”
To him, the State application had a “split personality.”
The Director of Prosecutions, Ms Leatile Dambe, immediately sprung up shouting down the defence and reminding them that her charges were anything but fools.
“We are not fools. That language can only be used in the streets not inside the court,” said Dambe.
Relations were already strained by the time the State formally called for Collins Newman and Company to recuse itself from the case.
State Counsel, Kgosietsile Ngakaagae, made it clear from the onset that the prosecution intended to call the law firm as one of the witnesses.
Continuing with the law firm as Nchindo’s representatives would plunge the case into a crisis, he said.
Justice David Newman, a High Court Judge and founding partner of Collins and Newman, was also named as a “high value witness” who will in due cause be called to stand inside the witness box.
“No impropriety is being suggested on Justice Newman. All we are saying is there is a document with respect to a plot which we maintain was fraudulently acquired and he happened to have been an officer at Collins Newman at the time,” said Ngakaagae.
Only Newman could clarify the web, said Ngakaagae.
“The input of our submission is that Collins Newman and Company was used as agents in a matter that turned out to be a crime. We are not saying they have been party to a crime or that they knew a crime was being committed.”
The call for their recusal was premised on the pretext that there were many unanswered questions which could only be answered by officers of the firm.
Allowing them to continue in their present capacity as legal representatives would bring what Ngakaagae colorfully called a “procedural and evidential crisis.”
He indicated that there were also risks that the State would at one point be forced to question their credibility if they were allowed to go on as Nchindo’s lawyers.
“Public interest will be greatly prejudiced where individuals who are properly witnesses are allowed to assume the mandate of legal representatives,” said the State.
To give further detail why Collins and Newman “fitted in the plot of the trial as witnesses”, Ngakaagae pushed the line that when Louis Nchindo purchased a house from Debswana – a transaction that was carried out by Collins and Newman, the duty transfer was paid by Debswana instead of by Nchindo.
“The firm [Collins Newman and Company] knew well where responsibility for payment fell but allowed an improper transfer duty in circumstances that rung loud of a conflict of interest,” he said.
He said the purchase of that house was in many respects “tainted with criminality.”
“Having been the lawyers of Debswana, the firm should have seen the risks of impropriety and incidental rise of a conflict of interest,” he charged
“How dare they say they should now be allowed to stay as legal representatives and not be called as witnesses? That would be greatly irregular,” he said.
It was at this point that responding to side remarks from one of Nchindo’s legal brains, Ngakaagae charged Peter Hodes of “unethical conduct.”
A very proud and loquacious man, Hodes sprung to his feet, pleading with the Magistrate to rein in Ngakaagae.
“I have practiced law for the last 44 years. No one has ever questioned my ethical conduct. You can call me anything but never question my ethical propriety,” said the clearly touched Hodes.
Ngakaagae was unmoved preferring instead to move on with his arguments: “There is astounding silence with regards to one count which would be sufficient for recusal. What is the basis of their silence,” Ngakaagae asked rhetorically. “The reason for the firm’s silence is that they are failing to account as to why they can’t be witnesses.”
But when he stood up to argue his part, Advocate Laxton started what turned out to be an elaborate of punching holes on the State’s case.
To everyone’s surprise, he insisted that the State’s application for recusal of Nchindo’s lawyers was schizophrenic. “It has a split personality ÔÇô neither fish nor fowl.”
He insisted that Nchindo’s choice of own lawyers was a constitutional right which could not be “jocularly” infringed.
He went another mile by reminding the court that it was improper that the State was asking the Magistrate to make a ruling on a case that has not yet started.
“As far as we know, none of the accused has taken a plea. As things stand, this case may well be listened in the future by a totally different court.”
Laxton said he was particularly surprise that the prosecution would be as brave as to state that Collins Newman and Company will be witnesses when they have neither talked nor interviewed them.
“Imagine the damage that will be done if the firm recused itself and at a later stage it so happens that they are not called as witnesses,” he said.
Laxton argued that the accused would be denied their constitutional right to be represented by a lawyer of their choice. “How then do we compensate the accused of the deprivation?” he asked.
Laxton further said he was worried by the State’s “jocular and cavalier attitude” on the accused person’s constitutional right to be represented by a lawyer of his choice.
This was in direct response to the State’s position that Nchindo had no option but to go back into the “law shop to get his second best choice” for a lawyer.
Though calm and collected, Laxton vehemently argued that the State’s application for recusal was distractive of justice, with the potential to “compromise the court and the rule of law.”
He, however, rubbed the prosecution the wrong way when he told the court that the State showed signs of “utter lack of knowledge of the commercial world.”
The case continues on August 8, 2008.
