Gideon Nkala
13 August 2008
As the lawyers were posing arguments and counter arguments at the Gaborone Village Magistrate Court on Friday, Louis Nchindo, the former Debswana strongman cupped his face with the palms of his hands.
With two of his index fingers he laboriously stroked his eyes. First starting with the tear ducts and slowly moving towards the eye lashes on top.
There are some anxiety lines showing. He cannot by any means be said to be gaunt, but he looks slightly thinner than when he first appeared in court in January. He looks a shade darker than the charmer and radiant Nchindo that everybody knows.
Nchindo is not the only one showing signs of fatigue. Even the public, and unbelievably the media, are already exhibiting signs of fatigue.
In January when the case started all the seats and any other spaces in the courtroom were taken hours before court sat. Two courtrooms were collapsed into one to accommodate the overflowing interest in the case. The passages and the car park were always teeming with curious and excited onlookers. But not any more. Last Friday when the case resumed there were very few people in attendance. One person could occupy one long bench alone and some benches were unoccupied.
With all the big players such as former President Festus Mogae, current President, Ian Khama, set to give evidence before court, the case was always going to be a 'must attend', but after a couple of court appearances, the public seems to be losing steam to meander along with the case in its many convolutions.
"A kheise e le yone ga e fele?" asked one man in disgust as attendants were filing out of Magistrate Lot Moroka's courtroom on Friday.
Others join in and state their disappointment at the many twists and turns that the case seems to be taking.
Their logic is simple. All they want is a battle in court. They believe in a good old fashioned fight with heroes and villains. They want the main court case; who did what and who is guilty or not guilty? They want the lawyers' cross examination. They want to see Mogae and Khama in court and possibly they will get a peep into how things are done at the top. They at least want to revel in the corporate politics, even if it is after the fact.
To them these other applications are an unnecessarily long foreplay that denies the public an opportunity to witness the real action. But unfortunately, court and its rules have their ways, which are religiously followed and sometimes the rigmarole such as recusal applications are a necessary part to the legal war plan. Sometimes in boxing, as in the courtroom, a fighter applies body blows not to earn points but to wear down an opponent.
To some members of the public the Nchindo case has largely been about side issues that do not feed into their schema.
While the public kept away on Friday inside court it was not just shuffling of the feet, movement was indeed made.
Including the magistrate, there were altogether 11 lawyers. Nchindo's team had assembled a total of seven lawyers, including two advocates and their two assistants from South Africa. There were three attorneys from Collins and Newman including senior partners, Parks Tafa, Jeffrey Bookbinder and Lawrence Khupe.
At just three, the prosecution was outnumbered by more than half. The prosecution trio of Matlhogonolo Phuthego, Kgosietsile Ngakayagae and Isabella Mbikiwa were not only outnumbered but also appeared to be lagging behind even in physical age.
The Director of Prosecutions, Leatile Dambe, who normally accompanies her prosecution troops to court was conspicuously missing.
Compared with the silver hairs evident on the legal armada that had been assembled by Nchindo, the prosecution team looked more like a team of lawyers that had barely completed their pupilage. This looked more like an unfair contest. Not even the David and Goliath metaphor could describe the atmosphere hanging in Chief Magistrate Lot Moroka's courtroom on this Friday morning. Advocate Peter Hodes' confidence, which borders on intimidating pomposity, some say, is no different on this day.
Once in a while he chats with his instructing attorney, Tafa. They both smile. Occasionally, the smile would be telecast to the other lawyers. You could see that the guys had the least of worries in the world. This looked like familiar territory to them.
It would be unfair to suggest that the prosecution looked timid and fearful. Certainly, it would be fair to observe that the prosecution were huddled on the extreme right of the table.
When they occasionally held court amongst themselves it was in very low tones, devoid of the 'confidence' that held sway in team Nchindo's lawyers. You were led to believe that they needed the steadying hand of the battle tested Dambe. How wrong?
Advocate Peter Hodes is a man with a gift for mirth. His presentations are always peppered with some lines that belong to comic strips. Taking issue with the prosecution over their choice of legal representative, he did not just go as far as stating that this is a constitutional case as other lawyers did.
He made his point in a spectacular fashion. He alleged that the prosecution wanted to turn his clients, who have the means to get the best counsel there is, into pro deo arrangements. There is, of course, general laughter in the courtroom.
He suggested that if that were to happen, they would sue General Khama. 'I am not sure whether he is General Khama or President General Khama," said the Capetonian, leading the laughter himself.
When the prosecution dismissed Advocate Hodes's suggestion that the case was important in that it involved former President Mogae and President Ian Khama, they pointed out: "That does not change the price of pork". The humorous Advocate retorted: "That changes the price of liquour, I am told," he said, as he broke into peals of laughter, infecting the entire courtroom.
"If you do not dismiss the application for lack of jurisdiction send us nicely to Lobatse," Hodes said, imploring Magistrate Moroka to refer the matter to the High Court for determination. Hodes took a swipe at the prosecution for having wasted time when they refused to get some admissions from Collins Newman attorneys, rather preferring to move a recusal application when this could have been avoided by getting the admissions from them. Typically, he went for the comical effect.
"I do not get chased around so often and easily, but on that occasion I was chased away by the Directorate of Public Prosecutions".
Earlier on, Eduard Fagan had protested the characterisation that Advocate Hodes was unethical.
"I agree that Advocate Hodes can be annoying and even irritating, but not unethical," Fagan attempted a jocular but complimentary comment on the Advocate.
Other than the good laugh that many people had, some said the arguments that were advanced in court were very informative.
Lay- people in attendance said some of the arguments raised, challenged commonly held belief. A lot of the people were impressed by the arguments on conflict of interest.
Fagan, arguing for the applicants maintained that conflict of interest should be subjected to a sterner test than taken at face value.
He argued that there is no general rule that states that a lawyer who has acted in a particular matter for one party shall not under any circumstances subsequently act for that party's opponent.
The question, he argued, is whether there is real danger that confidential information obtained from the first client might be used against the second.
Fagan said for bigger countries where solicitors are easily available in every other town such as the United States, the courts tend to be conservative when they apply this sterner rule but he suggested that for smaller markets like Botswana, this cannot be applied.
To some in the public gallery this point was intriguing as were the many other debates which, it was believed, could help illuminate on corporate governance principles of the law on conflict of interest. Some said they cannot hold their breath until the Magistrate makes a finding on some of these issues.
There were a lot of impressions created on this day. Prosecutor Kgosietsile Ngakaagae earned himself a lot of admirers in the gallery. Young, fearless and well spoken, the young prosecutor seemed unfazed by the experienced and expensively assembled team of Nchindo's lawyers.
Having listened to the lucid arguments from men who are considered some of the best pugilists in the legal ring, one thought the young lawyer would be overawed, but he seemed to get a thrill from facing these fancied opponents.
"What you say scares me. The lawyer's foremost duty is to the interest of justice, not some partisan interest. What you are saying scares me. I am scared of being a lawyer. We have been taught that court is the temple of justice. We swear allegiance to justice not to defend some partisan interest," he thundered without flinching.
To the suggestion that Collins Newman is the best legal firm in the country, he said that the statement borders on arrogance and he enunciated as he intoned on the arrogance.
He even had the cheek to stand up to the tongue-in-cheek specialist, Advocate Hodes that his many propositions do not change the price of pork.
"Moshimane yo o dithole he! le Sekgoa o a sechoma. O a ipuelela," said one man in admiration of Ngakaagae as we stood outside the courthouse in the usual kangaroo post-mortem sessions that usually follow the main court.
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