I. A CRITIQUE OF THE REASONING UNDERPINNING THE MAJOR SUBMISSIONS OF THE STATE
- In para. 4 of the State’s heads of argument, the State indicates its agreement with the content of paras. 1, 2, 3.1 and 3.2 of the Defence heads of argument.
- Paras 3.1 and 3.2 of the Defence heads contain the following submissions:
- Indiza’s rights, duties and obligations vis a viz the DoE were regulated largely by the provisions of the Service Level Agreement (“the SLA”); and,
- the fraud charges in the indictment have been formulated on the basis that the alleged breaches of the terms of the SLA by the accused constitute misrepresentations to the DoE.
- In para. 20 of the State’s heads, however, the State’s argument takes a somewhat different direction. In this latter paragraph, the following submission is made:
Right at the outset, the State submits that what the court is busy with in the present matter is actually a criminal case where the ultimate decision to be made is whether or not either of the accused committed acts which amounted to the offences of fraud, forgery, or uttering. The commission of these common law offences do not, in themselves, rely on the existence or otherwise of any contract but simply on whether the requisite misrepresentation was made to the prejudice or potential prejudice of any person or persons
3.1. Viewed on its own, the underlined submission is nonsensical and, what is more, contradicts the concession referred to in the paragraph above, when viewed in the context of the State’s heads as a whole. No offence, be it of a common law description or otherwise, has any practical significance unless it relates to a particular set of historic facts. Without such a relationship, the “offence” concerned enjoys, at best, a notional existence in the form of, say, an academic example mentioned in a legal textbook on Crime
3.2. What this Court is in fact busy with is precisely to consider whether there is any substance to the State’s particular factual allegations as contained in this particular indictment against the two accused.
3.3. It is only when such a determination has been made that the Court would be capable of bringing out a reasoned judgment declaring the accused to be guilty or innocent, as the case may be, of the crimes as charged.
3.4. The State’s attempts at this late juncture to divorce the charges from their factual underpinnings have been brought about simply because it has now transpired that the very assertions it has for the past six years vexed the accused with have been false all along.
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