P250m NPF case in shambles
DPP Director’s competency comes under serious scrutiny as Courts throw out the agency’s money laundering cases ‘ At the moment the competency of the DPP has been shredded into small pieces by the court in the Kebonang twins’ case’
The highly publicised National Petroleum Fund money laundering case could be in shambles as accused persons continue to be cleared.
The P250 million scandal which has been a centre of controversy put the prosecution on the spotlight when a panel of three judges punched holes in its case when setting aside the prosecution of High Court Judge Zein Kebonang and his twin brother who is also a former cabinet member, Sadique Kebonang.
The Kebonang brothers are the second to be cleared from the matter following Asset manager, Kgori Capital which was also cleared of any criminal activity by the Court of Appeal in the NPF scandal last year. Legal observers argue that this could spell doom for the Directorate of Public Prosecution ( DPP) to successfully prosecute the case and convict the implicated.
Kgori Capital was one of the companies that came under the spotlight when the NPF, a statutory fund run under the Energy Affairs Department, hit the headlines in late 2017, with the State alleging that millions have been lost through money laundering linked to the national intelligence agency.
This week the High Court indicated that Director of Public Prosecution has no untrammeled power to institute criminal proceedings against any person, regardless of whether or not there is prima facie evidence against the person. When delivering judgement High Court Judges Matlhogonolo Phuthego, Abednego Tafa and Christopher Gabanagae said a prosecution ought to be instituted or continued only where the Director of Public Prosecutions or his subordinate is satisfied that the test for prosecution is met.
Justice Phuthego who read the judgement said the test for prosecution is met if the evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction, evidential test and prosecution is required in the public interest- the public interest test.
He explained that each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken. The evidential test must be satisfied before the public interest is considered, added the judge indicating that the prosecutor must analyse and evaluate all of the evidence and information in a thorough and critical manner before he embarks on a prosecution. Other accused persons in the money laundering scandal among them businessman Bakang Seretse, Kago Stimela and Kenneth Kerekang and former Directorate of Intelligence and Security ( DIS) boss Isaac Kgosi also want the court to set aside the corruption charges against them. Attorney Kgosietsile Ngakaagae said that it is scandalous for the state to charge his clients without explaining charges to them. He made reference to the Kebonang brothers’ case that the prosecution has no case against the accused persons.
He argued that the state has wasted his clients’ time and destroyed their reputation. Extension II Chief Magistrate Kamogelo Mmelesi is expected to deliver the ruling on 8th December this year. DPP Director Advocate Stephen Tiroyakgosi had not responded to our enquiries about the matter at press time.
Uyapo Ndadi of Ndadi Law Firm said the Court of Appeal judgement of July 2019 in the Kgori Capital dealt a big blow to the prosecution. He told this publication in that in essence, it said for criminal charge to hold, the prosecution need to show that the accused had a hand in the commission of a crime. He said showing that the accused received money from a criminal activity is not good enough. “The intention to steal must be there.
Receiving a donation is not a crime. The President from the court record also benefited when he was Vice President, therefore, unless he knew and participated in the commission of the offence, he cannot be prosecuted after he leaves office.
“Post the delivery of the July 2019 judgment, I expected the DPP to reconsider their case and only go for those who planned and actually stole from government. It appears to me that it would be a tall order as the main accused persons didn’t rob government.
“Agreements were entered into and it seems to me that the matters are of a civil nature and not criminal nature.
But let us wait and see what the DPP strategy is going forward. At the moment the competency of the DPP has been shredded into small pieces by the court in the Kebonang twins’ case,” explained Ndadi who is Managing Partner at the law firm.
He added that he is hoping key lessons are learnt and going forward the DPP would do better for the good of his office and more importantly, for the good of the nation. Ndadi stated that the nation deserves to have institutions that are credible, competent and impartial in their work.