Sole wins more time in fraud trial

Clive Rubin
Business Report
August 19, 2001

The corruption trial of Ephraim Sole, the dismissed chief executive of the Lesotho Highlands Development Authority, resumed this week in the Maseru high court after a two-month recess, only to be halted within a day.

The prosecution, led by senior counsel Guido Penzhorn, had hoped to argue before Judge Brandon Cullinan that banking records from South Africa and Switzerland could be handed in as evidence.

But neither that evidence nor the evidence of a bank official were heard in court. Alan Bentley, an official of First National Bank in Johannesburg, was subpoenaed to testify to the authenticity, nature and significance of banking records in possession of the bank.

After objections from the defence were raised, they requested time to examine the banking records. As a result, copies of the records were not introduced as evidence and Bentley, still under subpoena, returned to Johannesburg.

Instead copies were provided to the defence so that they could consider if they wished to object to their introduction at a later date.

Argument about the admissibility of banking records from Switzerland that will, once the legal issues are resolved, have wider consequences and repercussions beyond this trial will have to wait until Cullinan is able to listen to further argument and to determine “which order takes ultimate effect”.

However, this debate was unexpectedly derailed when a more urgent legal issue surfaced. To the surprise of the prosecution, Sole’s defence team announced that Sipho Ndhuli, the director of public prosecutions when Sole was indicted in July 1999, would now defend the accused.

Penzhorn objected to Ndhuli’s presence and claimed there was the risk that Ndhuli was privy to information that could affect the prosecution of the case.

Cullinan handed down a “conditional ruling” that Ndhuli “had the right of audience and that the scale had tipped in favour” of Sole since he had “a constitutional right to be defended by a person of his choice”.

Despite this “stretching of the [constitutional] principal to the limit”, Cullinan said: “To say the least it is highly irregular.”

Still, he decided to allow Ndhuli to continue to represent his client for the time being. Cullinan added the proviso that he would reconsider his decision if there was proof before the court that Ndhuli was privy to details that could affect the prosecution’s case.

After two years of legal challenges, filibustering and delays it appeared the defence was running out of procedural matters to contest. However, by involving Ndhuli in the defence it created at best a diversion, possibly a delay and, if the case goes to appeal, potential grounds for the case to be dismissed.

The move also postponed the introduction of “damning” evidence relating to bank transfers between countries, individuals, intermediaries and companies involved in the Lesotho High-lands Water Project.

Accounts were to be examined in South Africa and Switzerland. While Sole’s defence team are doing their utmost to ensure that their client remains out on bail for as long as possible, he will probably have to adjust to living under much humbler circumstances in the near term.

The Lesotho Highlands Development Authority, which successfully sued its former chief executive in a civil case, plans to recover money due to it through a court-ordered auction of Sole’s property on September 1.

This includes three houses in suburban Maseru: a 10-room home with sauna and out-door pool, a four-room villa with a double garage and outdoor pool and a five-room home with a garage, along with an undeveloped plot.

In addition, three late model cars, a twin-cab pick-up truck and household items will be sold to the highest bidder.

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