19 May 2014

Apart from literature authors, if ever there is any societal grouping known for apt creativity of thought, it must be lawyers.

Just enter any random court room, especially during final submissions stage or mitigation. All kinds of metaphors, similes and figurative symbols dominate conversations at this time of the trial.

Just last week, Joseph  Ballout was convicted of being found in possession of an automated teller machine cashing and paying cards device; designed and adapted for the purpose of manufacturing fraudulent electronic cashing and paying cards. The court will sentence Ballout on Tuesday, May 20.

The charge attracts a P20 000 fine and getting an effective prison term of one year. Apparently the ATM scheming machine was dysfunctional, and this was where Ballout’s lawyer, Mr Friday Leburu chose to concentrate his imagery prowess.


Attorney Leburu said it would be unfair to punish his client for possession of a dysfunctional machine which was akin to being charged with possession of a badly rotten carcass of game.


Mitigating for his client, he said, “A severely rotten carcass of game meat cannot be used for any meaningful purpose, because it has lost its desired and useful state for human consumption.”

He argued that what his client was being punished for was only the possession of an obsolete device which could not be used for the purposes of cybercrime because it could not even function in its current state of disrepair.


Mr Leburu reasoned that the court should therefore take into consideration the issue of dysfunctional part of the said machine when handing down sentence.

He said Ballout passively participated in the offense, noting that the Liberian man had been in Botswana for the past 30 years and had no adverse record with the law.


“He is a first offender and courts should as far as possible try not to send first offenders to prison but where they send them that should be just mere introduction to prison conditions.

In addition a substantial portion of their prison term should be suspended,” he said.
 Ballout has been in prison for four months cumulatively and as such asked the court to at least impose a fine, adding that his client has already pleaded guilty and saved the court’s time.

“He is a Muslim and has a family to take care of and in addition his wife is expecting and is due this month,” Leburu said.
 He also submitted that Ballout was asthmatic and has a steel knee and a rare disease called hernia, which causes depletion of the underlining of the stomach. 


The state was represented by Directorate of Public Prosecutions (DPP) Mrs Priscilla Israel who said Mr Leburu did not furnish the court with Ballout’s medical proof suggesting that indeed he was suffering from a host of ailments.


The summary of facts indicated that Ballout was charged with unlawful possession of computer devices and 14 cashing and paying cards designed for the commission of cyber fraud crimes.


Apparently on July last year, the police received information that Ballout and another who had since been exonerated from liability were in possession of a scheming machine designed and adapted for the purpose of manufacturing fraudulent electronic cashing and paying cards.


Upon arrest and body search at Gaborone Sun, a black automated teller machine card device, was found in Ballout’s pockets.

Forensic investigations carried out in the scheming device found confirmed that it is indeed a scheming device used to capture information contained in the magnetic stripe in the bank and gifts cards albeit the said scheming device was dysfunctional. Ends