Mhlauli judgement (Part 3)
| Friday January 25, 2008 00:00
Is Kadimo Oremeng a truthful and credible witness?
Advocate Van Zyl dwelt at length on the evidence of Oremeng. The Advocate highlighted the variance between Oremeng's evidence in court and the statement he gave to the Directorate on Corruption and Economic Crime (DCEC) particularly on the roles played by Chaks Lekalake and Goolam. Well, in that statement he puts Lekalake at the centre of the stage. Oremeng gave an explanation on this variance in his evidence under cross-examination. He says yes at one point Lekalake approached him but never followed the matter up. It is to be noted that Goolam Abdullah was the common denominator between Lekalake and the accused.
Lekalake knew of the impending case and also had the temptation to pursue the matter but never did. This matter does not in any way impeach the credibility of Kadimo Oremeng.
I can best describe Kadimo Oremeng as a small fish with the propensity to swim in shark infested waters. Other than that he is an unassuming modest Motswana old man with one leg in feudal Thabala and another in metropole Gaborone. He represents the painful transition that many Batswana of his age go through, struggling to make the transition from feudal agrarian existence that Thabala provides to the cut throat free market dog eat dog environment presented by urban Botswana. He lacks the paraphernalia to make it in this cutthroat dog-eat dog environment hence his susceptibility for manipulation by the big players.
He is also gullible and like most rural folks takes people at face value. He has not woken up to the Jekyll and Hyde character of entrepreneurs in contemporary Botswana. The result has surely shocked him out of his wits.
The inconsistencies in Oremeng's evidence in no way make him an incorrigible liar. He admitted to have told lies in the many affidavits he swore to when the ill-fated High Court Application was launched. Other inconsistencies are around how much he received from Goolam and how. But there is no evidence that he told lies to this court. Whatever inconsistencies appearing in his evidence fall within acceptable levels that fallible human memory visits on humanity. The defence has tried but failed impeach his credibility as a witness. I hold that he is a reliable and credible witness. I now move to the second prong of the inquiry, which is to determine if his evidence is corroborated on all material particulars.
Corroboration
The following points in Oremeng's evidence require corroboration;
* That the decision by the accused to cause the allocation of the contested land to Norman was motivated by self interest;
* That the accused invited Oremeng into the plot to launch the False High Court Application;
* That Goolam was the war-chest behind the false High Court Application;
There is corroboration in abundance on all these aspects of Oremeng's evidence. Let us look at the evidence around the initiation of the false high Court Application. The accused person says that it was the idea of Goolam and Oremeng and was fortuitously invited into it when Oremeng saw him at the Middle Star Shops. In juxtaposition Oremeng says that the accused followed him to his home village - Thabala and sold the idea to him. Oremeng's evidence on this point finds corroboration from PW14 Emily Matlafela Oremeng, his wife who took part in the meeting. The defence tried but could not dislodge this immovable fact. I find that indeed the accused drove to Thabala and invited Oremeng into the plot. As I pointed out earlier it is inconceivable that Oremeng and Goolam could hatch a plot whose success depended solely on the forged documents by the accused without his involvement.
That Goolam provided the war-chest for the false high Court application is amply corroborated by Pw14 and significantly by the accused himself.
On the self serving decision to allocate Norman the land Oremeng's evidence finds corroboration from the evidence of Pw14 who heard the accused deliver the bad news to her husband. On hi aspect Pw14 said;
Mhlauli said we would forgive him for bringing bad news for us. He said that he had come to tell us that he took the plot that he was supposed to allocate to Kadimo and gave it to Norman. He said Norman has not fulfilled the promise and ran away with the plot...'
Further corroboration on what was operating in the accused persons mind when he caused the plot to be allocated to Norman is provided by Eddie Norman himself. In his evidence in chief Norman says;
'Sometimes in July 2000, I received a call from Elvidge Mhlauli who said that he played a role in my acquiring the land and that I should give him something...'
This damming piece of evidence by Norman survived the scathing cross examination that he went through. In fact the accused confirmed approaching Norman to have a stake in the land but said it was with an innocent and legitimate desire to invest his retirement package. There was nothing innocent about wanting a share arising out of an administrative decision he made.
In the final analyses and with the pronouncements of Henning J in Bangtoo Bros and others v National transport Commission and Others 1973 (4) SA 667 (N) in mind; I am are fortified by available evidence in pronouncing that;
* The accused person's decision was in the circumstances so arbitrary, so capricious and so grossly unreasonable as to lead to the inevitable inference that he did not lawfully exercise the discretion entrusted to him;
* The accused person's decision is inexplicable except as a product of pronounced bias and partiality towards Norman.
The last element of the offence of abuse of office is - prejudice to the rights of another. The legislature uses the word rights in section 104. It is evident that in using the word right in this section the legislature should not be understood to say that any person who submits an application anywhere acquires a right. In construing the word right as used in section 104 I allow myself to be cautioned by the words of Lord Steyn in R v Secretary of State for Home Department, Exparte Daly {2001} 3 All ER 433 (HL) para 28 wherein he crisply said;
'...In law context is everything...'
Context is all important. On the same point Ackerman J in First National Bank of SA Ltd t/a Wesbank v Commissioner of South African Revenue Service and Another; t/a Wesbank v Minister of Finance 2002 (4) SA 797 (CC) noted that in construing a legal concept it is critical to have regard to the legislative context within which it is used. As used in this context the word right must mean an expectation that the officials tasked with a statutory duty make administrative decisions to process applications for commercial land shall honestly apply their minds to the issues in accordance with the behest of the statute and the tenets of natural justice.
The accused acted in violation of these tenets to the prejudice the 'rights' of Oremeng.
Against this background the decision by the accused to cause/direct that the land be allocated to Eddie Norman was informed by one and only one consideration of personal interest. His hijack of the process of the Lands Department constituted abuse of office as it was only intended to finally benefit him. Once he developed personal interest in the matter, the accused became a judge in his own cause. When this happened, a salient rule of fairness in administrative decision making became a casualty.
This rule is entombed in the maxim- nemo judex in causa sua. A fuller version of the nemo judex in causa sua maxim is; {Nemo debet esse judex in propria causa, quianon potest case judex et pars} meaning; nobody is to be judge in his own cause because he cannot simultaneously be judge and a party. Other variants of the same maxim are {Ne quis in sua causa judicet vel sibi jus dicat} Nobody shall examine his own case as a judge or give judgment for himself.
See: H Broom Legal Maxims (ed. R. H. Kersely, 1939), p68 and also Bin Chen, General Principles of Law as Applied by International Courts and tribunals (1953), p279.The law expresses a strong disapproval of the blurring of the lines between judge and party.
The accused broke this rule with devastating consequences. His non disclosure of critical information to Minister Daniel Kwelagobe particularly on the presence of competing applications led the Minister to make/authorize an allocation he would not have made had the accused availed all the information to him. The accused's conduct meets the demands of the high threshold of criminal liability as all basic ingredient of the offence of abuse of office are proven beyond all reasonable doubt. In ending let me go back to the beginning and echo the words of Dako J in Maphorisa (supra) and say that the evidence adduced in this case, is capable of leading an ordinary reasonable man, after mature consideration to come to the conclusion that there exist no reasonable doubt that the accused committed the offence charged.
In the final analysis the factual matrix on Count 1 is so stable that is it is very safe to convict. I therefore find the accused person guilty and convict him of Abuse of Office C/S 104 (1) of The Penal Code on Count 1.
Count 3
Here the accused person is charged with Knowingly Making a False Statement in an Affidavit C/S 5 of the Commissioner of Oaths Act (Cap 05:03) A.R.W Section 113 of the Penal Code. It is important that we know what these provisions of the law say. Section 5 of the Commissioners of Oaths Act provides that;
'Any person who, in an affidavit of solemn or attested declaration made before a person competent to administer the oath or take the declaration, makes a false statement corruptly or maliciously or knowing it to be false, shall be guilty of an offence and liable upon conviction to the penalties prescribed by law for the crime of perjury.'
Section 113 is merely a punishment section and is of no immediate concern to us now.
The offence is constituted of the following basic ingredients;
* Making a false statement;
* In an affidavit
* To a person competent to administer oath
* Knowingly;
To earn a conviction, the state is enjoined to prove each of the above elements beyond all reasonable doubt.
Brief factual background
It is now common cause that Elvidge Mhlauli, Abdullah Goolam and Kadimo Oremeng conspired to launch an application before the High Court of Botswana in Lobatse whose sole purpose was to obtain a court order taking the contested piece of land allocated to Norman by the Minister of Local Government Lands and Housing.
The trio instructed Attorneys Monthe Marumo to fight the court case. Attorney Moatlhodi Marumo handled the case.
On the 1st day of November 2000 the attorneys filed an application by notice of motion. The case was allocated case number Misca 539/2000.
The parties were Kadimo Oremeng as the Applicant while the Respondents were- 1st Respondent Eddie Norman, 2nd Respondent Trafiquair Fifteen Pty Ltd, 3rd Respondent River walk Pty Ltd and 4th Respondent Edco Investments Pty Ltd.
The state basically relies on the evidence of two witnesses; the admitted evidence of The Registrar and Master, the admitted founding affidavit of Kadimo Oremeng and the admitted Confirmatory affidavit of Elvidge Mhlauli and the viva voce evidence of the Commissioner of Oaths Attorney Samkelo Chibanda Thuto.
There is no dispute that PW17 is an Attorney at Law admitted to practice in the courts of Botswana. There is further no dispute that she was a duly recognized Commissioner of Oaths in terms of the laws of Botswana.
Her evidence is that on the 31st day of October 2000, the accused person presented himself before her for the purpose of commissioning an affidavit. The accused presented a document titled .
Confirmatory affidavit
She candidly admitted to have a scant independent recollection of the events of the day and relied on the document for a recollection, but she says as a matter of procedure she would cause the deponent to take oath before causing him to append his signature to the affidavit.
She says she is confident that this is what she did in spite of the absence of independent recollection on her part.
The defence case is that the absence of an independent recollection on her part should inure to the benefit of the accused person. Advocate Francois Van Zyl argued that in the face of uncertainty on the part of the commissioner of Oaths the accused version that he was not caused to take oath be taken as the true position. He further argued that if this be taken as a true position then the document cannot be called an affidavit. If it is not an affidavit then no offence was committed by the accused even if he told lies therein.
Analyses of evidence and concomitant findings of fact
The following issues stand to be determined by this court;
* whether the accuse made any statement;
* whether the statement was false;
* whether it was made to a commissioner of oaths;
* whether it was made under oath;
* whether the accused knew it was false.
Did the accused make the statement in exhibit P31-Titled confirmatory affidavit? The defence admitted this fact. Even the accused in his evidence both in chief and under cross examination clearly admitted to have made it. I therefore find it as a fact that he indeed made the statement.
Was it made to a commissioner of Oaths? Yes without a doubt. This fact the defence did not contest. I therefore find it as a fact supported by evidence that the statement was made to a Commissioner of Oaths duly recognized by the Laws of Botswana.
Was the statement false? Perhaps before finding an answer to this question we answer the question- what was the statement. The statement was confirmatory to the statement contained in Kadimo Oremeng's founding affidavit.
In paragraph 15 of his founding affidavit Oremeng says;
'The discussions between Norman, Mhlauli and I calumniated in an agreement between Norman and I that;
15.1 we would form a joint venture/syndicate which would be allocated the piece of land in question;
15.2 the 1st Respondent and I together with a third person to be nominated by myself would each hold equal share in the joint venture company;
15.3 pending the formation of a joint venture company the piece of land would be allocated to the 1st Respondent in his personal name and would be transferred to the joint venture company subsequently.'
Oremeng then annexed in his affidavit a copy of the letter of joint allocation written by the accused dated 3rd June 1998 as KO2. The defence admits that the accused forged this letter to lend credence to the joint allocation story. In addition to that Oremeng annexed a copy of a forged Minute authored by the accused also laying credence to the joint allegation story marked KO3. These two documents were forged by the accuse person.
In his confirmatory affidavit, the accused person says;
* 'I have read the affidavit of the applicant Kadimo Oremeng. I confirm the contents of the said affidavit in so far as they relate to me and my involvement in the matter.
* I confirm further that throughout the course of 1998 and 1999 I was the Permanent Secretary in the then Ministry of Local Government Lands and Housing. By virtue of that office, I was the highest ranking civil servant in that Ministry. It was my responsibility to play the role alluded to in the affidavit of Oremeng and I did discharge such duties.'
The duties that the accused purports to have discharged are presiding over a meeting which calumniated with the joint allocation of the piece of land to Oremeng and Norman. This, the defence and specifically the accused admits is false.
I therefore find it as a fact supported by evidence that the accused did make a false statement and did so knowingly.
Consequently all the basic ingredients of the offence but one have been proven. The outstanding issue is whether the statement was made under oath and thus elevate the document in question to the status of an affidavit?
The defence argued that there is no conclusive prove that oath was administered. The defence approach to this question is remarkably itomised. While putting to question the evidence of the commissioner of Oaths, the defence on the other hand admitted the evidence of the Registrar and Master of the High Court. Let us look at the critical aspects of his evidence; The Registrar and Master says; in his admitted affidavit;
Para 3.. ' by virtue of my position as registrar I am the custodian of all case records registered and kept at the High Court of Botswana, Lobatse.
Para 4. I am aware of the application filed by Monthe, Marumo and Company in the case matter of Kadimo Oremeng and Eddie Norman and three others.
Para 5. The application was filed by way of notice of motion on 1st November 2000 and allocated numbers 539/2000.
Para 6. 'The application was filed with a founding affidavit sworn to by Kadimo Oremeng (marked annexure A) and a confirmatory affidavit sworn to by Elvidge Mhlauli (marked annexure B )' (emphasis mine).
Let us pause here and make a reflection on the consequences of the defence's admission of The Registrar's evidence in terms of section 273 of the Penal Code. In doing so let us look at the provision itself;
273(1) 'In any criminal proceedings the accused or his representative in his presence may admit any fact relevant to the issue, and any such admission shall be sufficient evidence of that fact.' (emphasis mine).
Let us again look at the admission of the Registrar's evidence. The registrar says; 'The application was filed with a founding affidavit sworn to by Kadimo Oremeng (marked Annexure A) and a confirmatory affidavit sworn to by Elvidge Mhlauli (marked annexure B)' (emphasis mine).
The defence is in making this admission saying; we agree that the accused swore to a confirmatory affidavit.
Having done so, should the defence be permitted to practice itomised reasoning make a somersault and say that while we admit that the accused took oath because the Commissioner of Oaths has no independent recollection of the events of the day there is doubt as to whether the accused took oath? Aguda JA (may his soul rest in eternal peace) had this to say about such an approach to litigation in Attorney General v Moagi 1981 BLR 1 (CA);
'Courts by indulging in extreme legal sophistry may bring the system of justice into disrepute thus alienating the feelings of society; that any appearance that the courts lean towards legalism at the expense of justice, may bring the judicial system into disrepute...) .
I cannot put it better than this. Certainly to permit a man who says I swore to an affidavit, and who relied on such an affidavit to prosecute a case to finality before the High Court when it suits him to say that document was never an affidavit would be an indulgence in sterile legal sophistry with the potential to bring the judicial system into disrepute. I reject the defence's itomised reasoning.
And find it as a fact supported by evidence that the accused did on the strength of admitted evidence and on the totality of evidence that he did swear to the confirmatory affidavit.
In making this pronouncement, the last piece of the jigsaw falls perfectly into place and I find that all basic ingredients of the offence have been proven.
The accused guilt is proven beyond all reasonable doubt and I find him guilty and convict him as charged on Count 3.
Verdict
Accused Stands Convicted On Both Counts 1 and 3
Passed in an open court on this---- 20th day of December 2007 at 2pm