NPF management was blocked from tracking accounts - DPP
The Directorate of Public Prosecutions (DPP) is adamant that the multi-million assets owned by local businessman Bakang Seretse were purchased through money from the National Petroleum Fund (NPF) and that the High Court was right to order forfeiture of the assets.
The State believes that Seretse, who was at the time the managing director of Kgori Capital, an asset management company that was tasked with administering the NPF since winning the tender in January 2016, connived with the former director of energy in the then Ministry of Minerals and Water Resources, Kenneth Kerekang to move some of the funds from the NPF account.
Bakang and Kerekang were among those who were accused by the State of dipping their hands in the P250 million belonging to the national treasury when the scandal broke in early 2017.
Trying to salvage the little that was remaining, the State made a forfeiture application against Seretse’s assets. Its basis for the order was that the same assets constituted proceeds of crime.
The application for forfeiture had been made in terms of Section 37 of the Proceeds and Instruments of Crime Act (PICA)
Following Justice Omphemetse Motumise’s judgment that the State keep the assets, and Seretse being aggrieved by the decision, he approached the Court of Appeal for a redress.
State response to Seretse appeal
State lawyer Dumisani Marapo from the DPP said Seretse and Kerekang were the main actors who colluded to defraud the NPF of the money that was meant to buy oil. In its response to Seretse’s argument that the judge was wrong to order the forfeiture of his assets, Marapo said the assets were proceeds of crime and that he (Seretse) cannot be allowed to have access to them.
“The assets were bought with proceeds of crime and we had assisted the court with enough documents to prove our case,” he said.
Marapo went on to accuse Seretse and Kerekang of conniving to move money from the NPF account without being sanctioned by the Fund. In the process, they moved P60 million from the NPF account to a new account. He said such a move was done so that the NPF management committee could not track the account movement, adding that the reason given for opening a new account was that the money would be used to buy oil stock, which was never bought.
Marapo also said after being moved from the NPF account, the money was used for personal gains by the two and hence the State had demonstrated that the properties in question were proceeds of crime.
“If the court finds that the P60 million was tainted, then anything that comes out of the P60 million follows suit,” he said.
Marapo explained that some of the assets that Seretse said were financed through bank loans were later modified with proceeds of crime.
“Assets such as a plot could have been financed by a bank as he demonstrated but at the end of the day the house was renovated or modified using the money that was taken out of the NPF account and such will constitute to acquiring it through proceeds of crime,” he argued.
The lawyer also said the judge was correct to order forfeiture as the appellant had failed to show how some of the assets were obtained except those that were said to have been shown to have been obtained through bank loans. He also stated that the documents before the court were procedurally submitted as per the law, hence they were able to assist the court in dealing with the matter.
DPP’s Case
The NPF case has been one of the biggest cases in the State’s judicial calendar. Many prominent figures were named including Justice Zein Kebonang and his brother, Sadique Kebonang though their cases never went far as investigations unfolded.
The DPP in its attempt to recover some of the funds belonging to the national treasury went after the likes of Seretse who at the time his company had won a contract to manage the funds.
The DPP reckoned the amount of P67,734,260 and other assets belonging to Seretse and his companies were proceeds of crime. The assets in question ranged from various residential properties, luxury vehicles, furniture, jewellery, agricultural and gym equipment, which he contends that specific assets namely Weylandts furniture and fittings, gym equipment, and residential property in Gaborone West.
Offences related to the Assets
● Corruption- contrary to section of the Corruption and Economic Crime Act.
● Cheating of the public revenue
● Corruption
● Money laundering
The offences are alleged to show proof that Seretse’s assets are proceeds of crime.
Punitive costs
Marapo submitted that award of punitive costs will not be granted lightly, as the court looks upon such orders with disfavour and is loath to penalise a person who has exercised his right to obtain a judicial decision on any complaint he may have.
He argued that the court has already given a way on awarding punitive costs pointing out that the court had the occasion to say that the grounds upon which the court may order a party to pay his opponent’s attorney and client costs are first that the appellants’ motives have been vexatious, reckless, malicious and frivolous.
“We submit that no such behavioural malefaction has been shown on our part except that we made reference to a party who enjoined the appellant in the case. The case is not suitable for the award of punitive costs.
In conclusion, he said as the DPP they have not abused any court process and have not made any unjust attacks on the other party.
Meanwhile, Justice Motumise’s judgment said the court found that the fraudulent actions of Seretse and Kerekang cheated the public revenue.
He explained that the duo acted fraudulently in diverting funds from the NPF for private gain instead of purchasing oil stocks for the Botswana Oil, according to the avowed purpose for which the funds were assigned.
Justice Motumise also indicated that Seretse used some of the diverted funds to buy Kerekang a house. The case was before Justices Johan Froneman, Singh Lakhvinder Walia and Edwin Cameron and judgment has been reserved for February 23.