25 Mar 2019

Regional magistrate- south, Mr Masilo Mathaka on March 22 ordered the state to furnish further particulars to the defence in the ongoing high profile case where Kenneth Kerekang, Bakang Seretse and others stand accused of various charges including money laundering involving millions of pula from the National Petroleum Fund.

At the last hearing, defence attorneys, Mr Kgosietsile Ngakaagae and Mr Unoda Mack had argued for the quashing of charges against the accused, or if the case proceeds, that the state present the accused with further particulars of the charges in order to provide greater clarity of the accusations levelled against them.

Magistrate Mathaka ruled against the quashing of the charges, saying that given the seriousness of the allegations in the case, it would be in the public interest to resolve the matter by arguing the merits rather than to end it based on technicalities.

On the second issue under consideration, Mr Mathaka ruled that the state should, within 14 days, provide the defence with further particulars. These are the details that extensively clarify the accusations leveled against the accused.

An example made was count 56, whose particulars of offence are that the accused persons engaged in a transaction involving proceeds of crime by causing P3.31 million to be transferred from one bank account to another.

Further particulars requested by the defence were whether the transfer was effected by electronic transfer, written instruction or other means; whether accused person Sadique Kebonang was a signatory to the transferring account, and if the said funds were payment for anything.

“In counsel Mack argues for instance that for count 56 the questioned sum is P3.31 million, but the state explained where the P3 million went, yet when it comes to P310 000 they claim not to know where it went. 

To him this amounts to a refusal to disclose the trail of the P310 000. 

He buttressed his arguments by alleging that there are applications before the high court for restraints and forfeiture of his clients’ property, in which the state disclosed the trail of these monies. 

Mr Ngakaagae’s application concerns all the counts,” Mr Mathaka noted.

Explaining how he arrived at his ruling, Mr Mathaka said a request and delivery of particulars was governed by section 146 of the Criminal Procedure and Evidence Act (CPEA), which empowers the court to decide, either before or during trial that direct particulars be provided to the accused on any matter alleged in the indictment or summons.

“This provision was extensively dealt with in the ground breaking case of Nchindo and Others vs DPP and Others of 2010. 

The court in that case made some observations which appear relevant to the matter at hand; that section 146 of the CPEA is concerned with ensuring a fair trial and giving effect to section 10 of the constitution which guarantees a fair hearing to a person charged with criminal offence,” Mr Mathaka explained.

He noted that the Nchindo case had ruled that trial by ambush cannot be embraced in modern society as it often leads to miscarriage of justice. 

The prosecution had previously argued that further particulars were not necessary for the purpose of pleading, but rather a matter for evidence once the merits of the trial were argued in court. But upon the ruling, the prosecution promised to furnish the further particulars to the defence within the stipulated 14 days.

Former South African National Director of Public Prosecutions, Mr Shaun Abrahams has been co-opted by the local Directorate of Public Prosecutions as a prosecutor in the case. In his first appearance at the trial he said the state intended to make further additions to the charge sheet, charge more accused persons and request for the moving of the case to the high court. A status hearing on these matters will take place on May 24. ends