Mmegi/The Reporter (Gaborone)
Lekopanye Mooketsi
4 November 2009
Othusitse Tshesebe, a local musician who is facing charges of swindling members of the public, is still languishing in jail. Tshesebe was recently granted bail by the Lobatse High Court.
But he has failed to meet the bail conditions. One of the conditions is that he must deposit P150, 000 cash with the High Court. However, he seems to have failed to raise the money.
Tshesebe's lawyer, Busang Manewe, confirmed that his client has been unable to meet the bail condition.Tshesebe is facing nine charges of defrauding members of the public.
He has been charged with obtaining money by false pretences. The state alleges that he collected close to P500,000 from different individuals under the pretext that he was going to supply them with vehicles. But he failed to deliver on his promises. The alleged crimes were committed between July 31, 2008 and May 24, 2009.
Earlier on, Tshesebe had his application for bail dismissed by the Gaborone Magistrate Court. This was why he ended up appealing to the High Court.
His lawyer had argued that the agreement between the parties, did not disclose any intention of a criminal nature on Tshesebe's part. Manewe maintained that there was no prima facie against Tshesebe and bail must be granted to him. He said the state has not produced any evidence to show that he was a person who would not honour his bail conditions.
In his ruling for bail application appeal, Chief Justice Julian Nganunu said the finding whether Tshesebe was contracting under false pretences, would be made by the trial court after evidence has been produced. Nganunu said Tshesebe does not appear to have set shop where he sold vehicles to the public. He said Tshesebe appears to have decided to approach individuals , obtain money from them with the promise that to buy a particular vehicle within days and then not deliver for months.
The judge noted that Tshesebe made no explanations to his victims.He said although Tshesebe argued that the detention in the last three months cost him valuable business, but it seems that it is the same business he has been charged with. Nganunu said it must be clear to any court that the continuation by Tshesebe of obtaining money from the public with empty promises is a dangerous practice.
He cautioned that if it is intended that Tshesebe should be released to continue with his practice, the argument is dangerous and unsound. He said it would mean that Tshesebe would continue to accumulate deposits from the public and still be unable to deliver a single vehicle in return. "I say this because the appellant did not explain in his affidavit that his failure to deliver to the nine complainants (now 10), was of a temporary nature and or has disappeared and he was now able to conduct legitimate business. The practice cannot be encouraged at all; and the appellant must in fact be discouraged to continue along these lines, until he is sure of delivery," the judge said.
"Bail is in the discretion of the court upon examining all the factors attendant in a case and striking a balance between the interests of the public and that of justice. I think that the issue about whether the appellant will run away and fail to attend his trial is clouded in uncertainty. He seems to have rented accommodation at Block 9. On the other hand, it is clear that he has not been living at the property of recent times for the reasons he gave.
That caused some difficulty to the law enforcement authorities in trying to find him, but this fact is presently neither here nor there. What however is clear is that the appellant is a person with a certain mode of conducting business, if what he does should be so described, and that the method he has chosen is costing the hopes of many of his intended clients."Nganunu said he believed that if Tshesebe was to continue on that method, it could only lead to grief and loss to many of his clients.
"That has to stop before the public is gravely swindled."Nganunu said he was granting bail with stringent terms that "will illustrate to Tshesebe that he must not continue this line of business without an assurance" that he would deliver.
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