Ex-CMB bosses fight back
● Want charges reviewed, set aside
Former Capital Management Botswana (CMB) directors, Tim Marsland and Rapula Okaile, are not taking their legal challenges lying down. In their latest quest for justice, they have filed an application at the High Court raising a number of contentions geared at quashing the over P400m pension fund controversy
The embattled Capital Management Botswana (CMB) former directors are fighting for their charges to be dropped and they have taken the government to court on a review mission.
One of the ex-bosses, Tim Marsland has filed a review application challenging the Directorate of Public Prosecutions (DPP) director and the Attorney General’s (AG) decision to prosecute and charge them with various charges of obtaining by false pretences and money laundering.
According to his founding affidavit, Marsland who claims to be currently held in prison says, the decision to charge them was malicious, irrational and was made in bad faith, and therefore was liable to be set aside.
He explained that it was a shocking decision he has struggled to comprehend and make sense that his liberty had been curtailed for about two years for offences he has not committed and that his accusers could boldly go on record to assert his innocence but still muster the courage to charge and prosecute them for the offences they have not committed.
“The matter started as a commercial contractual dispute between CMB and Botswana Public Officers Pension Fund. The dispute went all the way to the Court of Appeal and it ended up with Peter Collins being appointed statutory manager,” he said.
He argued that the respondents have quite maliciously and unreasonably inflated and conflated a contractual dispute into a criminal matter when there was simply no evidence of criminal wrongdoing on their part.
Dipping into the monies they have been charged to have taken, Marsland said the monies they are said to have obtained by false pretence stood at P204m while the charge sheet maintained they obtained a total of P477m fraudulently and have laundered the same. “Now the monies obtained by false pretence was P150m for Kawena Holdings, P50m from AGILE and some dividend from Wilderness Safari.
The amount was P204m according to them,” he said. Giving details in one of the charges, Marsland said according to the charge sheet there was one of obtaining by false pretence as regards to P150 million investments intended for Okavango Wilderness Safari, which he said was made maliciously and irrationally considering that the money was used to purchase shares from Safari, which is a public company.
He said even investigator Kentse Setaboshane confirmed the purchase in an answering affidavit where P143m was used and the remaining P7m was transferred to CMB Fund 1 and was used by the director for personal benefit which he said was not true.
“At the very least I would have thought that if anything the charge will relate to about P7m remaining from the P150m as it is claimed that it was used by the directors of CMB Fund 1 for their personal benefit.
Quite shockingly, in any event, even that charge would have still been malicious, irrational and made in bad faith, considering that the P7m was used to cover transactional fees,” he said.
In regards to his claims about still being held in prison, Marsland said he been held on account of warrants of arrests obtained at the behest of DPP and that he has been trying to set aside the warrants of arrest without any success both from the Magistrate’s to the High courts.
He explained that since his arrest in July 2019 he has remained in prison up to date and that he has on various occasions tried to apply for bail, but the director of DPP through state attorneys in South Africa would oppose all his efforts to be granted bail pending his extradition hearing in Botswana.
“The director had opposed all the applications that I had sought to make to secure my liberty. He opposed all the applications I made in Botswana and South Africa and his oppositions with the greatest of respect were unmeritorious and actuated by malice and unreasonableness,” he said. He explained that in many of his applications, he wanted the court to set aside his warrants of arrests but the DPP director thorough investigations from the Directorate on Corruption and Economic Crime (DCEC) falsely claimed that he was fugitive from justice.
Marsland stated that the director made claims that he was a fugitive despite the director and his investigators never told him they wanted to see him in Botswana nor did they advise his attorneys about that.
“They further made false claims that I was a fugitive despite that they knew my residential address in SA and contact details but never made an attempt to locate me,” he said.
He questioned the DPP director making unsubstantiated claims that he (Marshal) was a fugitive from justice when he never knew that there was a court order issued against him and that even after the warrants of arrests he never knew about them nor his attorneys.
Marsland said if the director had obtained the warrants in good faith without ulterior motive he would have expected to be informed and advised to avail himself or else the warrants would be executed.
“He did not alert me after the warrants were obtained and instead he connived with DIS to set a trap for me and get me arrested. This is submitted amount to arbitrary exercise of power and it is grossly unreasonable and malicious,” he said.
Former director and shareholder, Rapula Okaile appears in the review application as a second applicant in the matter and has also deposed a verifying affidavit.