Tha­hane walks free

Lesotho Times - - Front Page - Tefo Tefo

THE pros­e­cu­tion has with­drawn cor­rup­tion charges against for­mer Fi­nance Min­is­ter Ti­mothy Tha­hane ( pic­tured) re­lat­ing to a wool and mohair pro­ject con­tract awarded to Civa In­no­va­tions Man­age­ment (Pro­pri­etary) Lim­ited six years ago.

Dr Tha­hane was charged along­side for­mer Fi­nance Min­istry Prin­ci­pal Sec­re­tary Mos­ito Khethisa, Civa In­no­va­tions Di­rec­tor Mokhethi Moshoeshoe and Civa In­no­va­tions Man­age­ment (Pro­pri­etary) Lim­ited for al­legedly de­fraud­ing the Le­sotho govern­ment of M19 mil­lion in 2010.

How­ever, the case, which was be­fore the High Court, took a new turn this week when the pros­e­cu­tion an­nounced it had reached a plea bar­gain with Mr Khethisa, Mr Moshoeshoe and Civa In­no­va­tions (Pro­pri­etary) Lim­ited.

Ac­cord­ing to the deal, Mr Khethisa, Mr Moshoeshoe and Civa In­no­va­tions had agreed to plead guilty in re­turn for a le­nient sen­tence.

Af­ter the an­nounce­ment, the pros­e­cu­tion, through Se­nior Coun­sel Guido Pen­zhorn, ap­plied for Dr Tha­hane to be tried sep­a­rately from his co-ac­cused.

How­ever, Dr Tha­hane’s lawyer, Se­nior Coun­sel Du­misa Buhle Nt­se­beza, ar­gued his client could also have been given a chance to plead to the two fraud and bribery charges he was fac­ing.

In re­sponse, Ad­vo­cate Pen­zhorn told the court he was with­draw­ing the charges against Dr Tha­hane be­cause he was aware the for­mer min­is­ter was go­ing to plead not guilty as in­di­cated by his lawyer.

But Ad­vo­cate Nt­se­beza fur­ther ar­gued Crim­i­nal Pro­ce­dure and Ev­i­dence pro­vi­sions re­quired that if the pros­e­cu­tion in­tended to dis­con­tinue the trial, it should do so in writ­ing.

The pros­e­cu­tion, he added, was only with­draw­ing the charges be­cause it was not ready to lead ev­i­dence against Dr Tha­hane if he pleaded not guilty. “This is an abuse of process. “If this with­drawal is in­tended to be a tem­po­rary mea­sure and deny the ac­cused his right to a fair trial, then we re­serve the right to ex­er­cise our right.

“The Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) should dis­con­tinue, in writ­ing, any crim­i­nal pro­ceed­ings,” Ad­vo­cate Nt­se­beza ar­gued.

He fur­ther ar­gued if the charges were re­in­stated at a later stage, he might con­sider ap­ply­ing for a per­ma­nent stay of pros­e­cu­tion.

How­ever, Ad­vo­cate Pen­zhorn said the pros­e­cu­tion was not dis­con­tin­u­ing the case but with­draw­ing the charges against Dr Tha­hane.

Pre­sid­ing judge, Jus­tice Molefi Makara, said of the pros­e­cu­tion’s de­ci­sion: “Dis­con­tin­u­ance can only be done af­ter the ac­cused has pleaded, but with­drawal can be ex­er­cised by the DPP be­fore the plea is ten­dered.

“Tech­ni­cally speak­ing, the Crown was en­ti­tled to with­draw the case at that stage be­fore the ac­cused ten­dered the plea.

“Had Ac­cused One ten­dered his plea, the pros­e­cu­tion was obliged to field its wit­nesses. If it failed to do so, the ac­cused would be en­ti­tled to ac­quit­tal.”

How­ever, the judge ex­pressed con­cern that the pros­e­cu­tion was not ready to con­tinue with the case against Dr Tha­hane.

“The court must ex­press its dis­com­fort that the ac­cused has al­ways wanted his day in court and has al­ways wanted his fate to be de­cided. This case has been char­ac­terised by a num­ber of post­pone­ments and at some stage, it was clear the crown did not have ev­i­dence.

“It was clear that the ac­cused was ar­rested even be­fore in­ves­ti­ga­tions were com­pleted.

“Bring­ing a per­son to court and be­ing char­ac­ter-as­sas­si­nated by the me­dia is tor­ture by its na­ture.”

How­ever, the judge also said there was “noth­ing tech­ni­cally wrong with the crown mak­ing the in­ter­ven­tion it did”.

The judge fur­ther made the plea bar­gain by Mr Khethisa and Civa In­no­va­tion an or­der of the court. For­mer PS fined Mean­while, Mr Moshoeshoe’s charges were with­drawn as part of the plea bar­gain, while Mr Khethisa was fined M30 000. Fail­ure to raise the money would see him spend 12 months in prison.

In ad­di­tion, Civa In­no­va­tions (Pty) Ltd was or­dered to com­pen­sate the Le­sotho govern­ment with M6,5mil­lion. This was the amount the com­pany fraud­u­lently re­ceived from the govern­ment in re­la­tion to the pro­ject in ques­tion.

The court also or­dered that if the com­pany failed to pay the money, it should for­feit its as­sets equiv­a­lent to the said amount.

Ac­cord­ing to the charges, Civa was awarded a con­tract on 29 April 2010 by govern­ment, for a wool and mohair pro­ject, in con­tra­ven­tion of the coun­try’s pro­cure­ment reg­u­la­tions.

The charges were first pre­ferred against Mr Khethisa, Civa and its di­rec­tor in Oc­to­ber 2013.

Dr Tha­hane joined the case later that year as he was not present when it was first re­manded in Oc­to­ber 2013.

Ac­cord­ing to the charge sheet, Dr Tha­hane and his co-ac­cused were fac­ing two counts— fraud and bribery.

The fraud charge reads: “On or about the 29th April 2010 or there­after in the district of Maseru, the ac­cused, shar­ing a com­mon pur­pose, un­law­fully, de­lib­er­ately and with the in­tent to de­fraud, rep­re­sented to the govern­ment of Le­sotho or the Min­istry of Fi­nance and De­vel­op­ment Plan­ning that an agree­ment en­tered into be­tween the Min­istry and Ac­cused Three (Civa In­no­va­tions Man­age­ment {Pro­pri­etary} Lim­ited) on 29 April 2010 in re­spect of Wool & Mohair Prod­uct De­vel­op­ment, com­plied with the Pub­lic Pro­cure­ment Reg­u­la­tions of 2007. This was done with the in­ten­tion that the min­istry should act upon the said mis­rep­re­sen­ta­tion to its prej­u­dice and to the prej­u­dice of the govern­ment of Le­sotho, by pay­ing to the ac­cused three sums to­tal­ing M8 379 070.50; M9 772 000.00 and M915 596.85 and did thus com­mit the crime of fraud.”

On bribery, the charge sheet reads: “On a date un­known to the Crown but be­fore 29 April 2010, Ac­cused Three (the com­pany) and Four (com­pany di­rec­tor Moshoeshoe) cor­ruptly of­fered a con­sid­er­a­tion to Ac­cused One (Tha­hane) and Two (Khethisa), who cor­ruptly agreed to ac­cept such con­sid­er­a­tion in re­turn for ac­tion in their of­fi­cial ca­pac­i­ties as pub­lic of­fi­cials — Ac­cused One in his ca­pac­ity as Min­is­ter of Fi­nance and De­vel­op­ment Plan­ning and Ac­cused Two as Prin­ci­pal Sec­re­tary.

“Such ac­tion by Ac­cused One and Two was fa­cil­i­tat­ing a con­tract be­tween the govern­ment of the King­dom of Le­sotho, on the one hand, and Ac­cused Three on the other, on 29 April 2010, in re­spect of Wool and Mohair Prod­uct De­vel­op­ment. Such con­sid­er­a­tion was in the form of a share in the pro­ceeds of funds re­ceived by Ac­cused Three in re­spect of such con­tract.”

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