allAfrica.com: Botswana: Sparks Set to Fly in Nchindo Case (Page 1 of 1)

A legal powder keg will be blazing at the Village Magistrates Court tomorrow when a Directorate of Public Prosecutions (DPP) team of attorneys lock horns with Collins Newman attorneys, who are acting for former Debswana managing director Louis Nchindo and other former Debswana employees.

This time the DPP has filed a notice of motion, urging the court to order Nchindo's instructing lawyers, Collins Newman Attorneys, to withdraw from the criminal case before it.

DPP has also added charges of stealing by servant against Nchindo and former Debswana group secretary Joe Matome (lying under oath) and additional theft charges against Nchindo in which he is alleged to have transferred to Debswana payment of transfer duty to the tune of P99, 625 in respect of disposal of Plot 5084. The DPP has filed four affidavits to support the application.

The founding affidavit is authored by DPP deputy director Phadi Solomon and the three supporting affidavits are from DCEC director Tymon Katlholo, DCEC investigator Bushie Moseki, and police officer Victor Mabina.

In her affidavit, Solomon introduces herself as the lead counsel in the case and states that her interest in the case, as a judicial officer, is to ensure that "the trial is conducted with all fairness, professionalism, diligence and ethical rectitude" in the interest of all parties. She particularly underscores her oversight role: "I have a duty to ensure the integrity of the criminal proceedings before the court and to advise the court on any ethical concerns likely to bring the administration of justice into disrepute to protect the integrity of the trial on any ethical concerns," argues Solomon in her preamble.

DPP contents that the continuation of Collins Newman attorney to represent Nchindo in the criminal case that is before court offends the ethical and professional conduct of lawyers as spelt out under legal practitioners' conduct. "A lawyer is precluded from acting in a case where there is actual or potential conflict of interest between the interests of two clients he purports to represent. A lawyer is precluded from acting for a client where there is actual or potential conflict of interest between his interests and those of his clients. A lawyer is precluded from acting for a client where there is actual or potential conflict of interest between his/her own interests and the interests of justice. A court of law (including officers of the court) has a duty to protect the integrity of proceedings before it."

In their determination, the DPP says the proper role of Collins Newman attorneys should be that of witnesses and not attorneys of anyone involved in the case. DPP says as a matter of fact, intimated that they will call attorneys at the firm such as Parks Tafa, Lawrence Khupe and Justice Newman, who was formerly with the law firm, among others, as witnesses during the course of the main trial.

In her affidavit, Solomon enumerates a number of instances where she says the lawyers at the firm could help shed light on the commission of the crime(s) that Nchindo has been charged with.

Among issues that DPP would want Collins Newman attorneys clarified is the fact that the firm did work - supposedly for Nchindo but sent the fee note to Debswana. Further, the prosecution would want the lawyers to explain whether the land in dispute - Plot 55720 in Block 10 - was the property of Nchindo and his son and why the legal bills were sent to Debswana and not to their company - Tourism Consortium Development. The DPP would further demand to know from the lawyers whether in addressing the expenses to Debswana they were acting for Debswana or for other parties. "Why they did not find themselves compromised as attorneys in acting for both the majority shareholder (Nchindo) and the director of TDC and Debswana in a situation which was likely to give rise to conflict of interest?" asks Solomon, adding that Collins Newman lawyers need to explain how they understood the relationship between Nchindo, TDC and Debswana with regard to Plot 55720 in terms of the instructions that they were given.= DPP says they are aware that between the period of December 18, 2000 and August 31, 2007 business between Debswana and the law firm was to the tune of P 4 290 696 64.

"I am concerned that notwithstanding the controversy that has since arisen over Plot 55720 Gaborone, the lawyers continue to provide legal services to TDC. Plot 55720, Gaborone, is at issue in the indictment against their clients. This is in clear disregard of the fact that the rights of their client, Debswana, are also in issue, as having been violated by Nchindo and all the other former employees charged. I am of the reasonable belief that this constitutes a material deviation from legal ethics on the part of the law firm.

"The law firm continues to do business with Nchindo and others in TDC with regards to Plot 55720 as conveyancers for which work they naturally receive payment. Plot 55720 is at the heart of charges against Nchindo, his son, TDC and Matome. Accordingly, the law firm is involved with Plot 55720, Gaborone, and have a collateral business interest in ensuring that Plot 55720 remains the property of Nchindo, his son and TDC. I am of the belief that this fact is likely to affect their professional approach to the case as their business interests may also be affected in the event of an unfavourable verdict by court as to the property of TDC's acquisition of Plot 55720,"Solomon maintains.

Solomon would plead with court not to allow Collins Newman lawyers to continue as instructing lawyers because of procedural, ethical, professional and conflict of interest concerns.

She maintains that the fact that the lawyers are already transacting business as conveyancers in respect of the disputed plot, they will not objectively pursue their mandate and that as witnesses in the case, they would suffer conflict of interest if allowed to stay in the case.

Collins Newman have filed a motion to oppose the recusal motion. In the DPP recusal motion, Collins Newman lawyers are the first respondents while Nchindo is the second respondent and the others follow TDC, Louis Garvas Nchindo, Joe Matome, Galconda Holdings and Jacob Sesinyi. Although all these other parties have been cited as respondents, DPP makes it clear that they do not seek any other relief from them except from their representatives.

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