03 Sep 2019

Accused persons in the National Petroleum Fund (NPF) case will, together with several others, be arraigned before Regional Magistrate-South, Mr Masilo Mathaka on September 19.

The attempt to have them arraigned before Magistrate Goodwill Makofi at Broadhurst Magistrates Court on September 3 failed when defence attorneys, Messrs Kgosietsile Ngakaagae, Unoda Mack and Busang Manewe opposed the prosecution’s application to have the accused persons committed to the High Court for trial without charges being put to them.

Labelling the prosecution’s move an abuse of court processes, Mr Ngakaagae, who represents 10 of the 17 accused persons, said committing the case to the High Court without the charge sheet having been read to the accused would be prejudicial to them and it would deny them an opportunity to fight any possible violation of their rights.

Furthermore, he said the prosecution had once attempted to charge the accused persons with the same offences, but the court ruled against that on grounds that the charges were incompetent.

“Under Section 147 of the Criminal Procedure and Evidence Act, they are entitled to be committed on charges that they understand and the particulars of which are fully sufficient. The court does not just rubber-stamp what the prosecution has said,” Mr Ngakaagae argued.

Mr Mack, appearing on behalf of four accused, wondered what process the prosecution was following in seeking to have accused persons committed to the High Court for charges that had not been put to them.

In addition, he submitted that with the new charges being an offshoot of the charges for which some of the accused persons had been committed to the High Court for trial under the NPF case, the new case could not be committed for trial without the charges being read to the accused.

Mr Mack said it was critical that the new charges be read to the accused because it was likely that some of the counts contained in the new charge sheet were not permissible since that could be tantamount to splitting of charges, which authorities had ruled against on grounds that it could cause prejudice and injustice to the accused.

Mr Manewe on one hand declined to argue the matter, saying since his clients were not part of the NPF case, which had recently been committed to the High Court, they were not affected by the issues raised by the rest of the accused persons.

Mr Pascal Mhandu from the Directorate of Public Prosecutions (DPP) had applied that the case be committed to the High Court and had maintained that there was nothing in law that compelled that the accused be read charges at the lower court. 

Mr Mhandu, who appeared alongside Mr Wesson Manchwe, countered the contention by the defence that the accused could not be committed on charges they did not know about, submitting  that the accused knew why they were before court since they had been served with copies of the charge sheets.   

Magistrate Makofi informed the parties that he stood in for Mr Mathaka for purposes of arraignment only and that he could not, as a result, rule on any other issues.

He thus ruled that he would not move forward with the arraignment given the circumstances, but would await the return of the substantive magistrate to continue with the case since he had background of both the ongoing case and the one the prosecution sought to bring against the accused persons.

He consequently postponed the arraignment of the 17 accused persons to September 19, a date on which he said Magistrate Mathaka would decide on the propriety of committing the case to the High Court with the charges not having been read to the accused. ends