P250m NPF case in shambles

“It is a watershed and well- reasoned judgment by Justice Phuthego. Despite the Court absolving the DPP from acting with malice in charging the Kebonang brothers, the court appears to be taking a swipe at the competency of the DPP.

“The court makes a categoric criticism at the DPP and makes a factual finding that the DPP rushed to charge the accused before satisfying itself that there exists prima facie evidence of wrongdoing on the part of the accused persons. Surely, this is an indictment on the DPP and this judgment must provoke an honest conversation on the suitability, competency and professionalism of the current DPP,” said attorney Kago Mokotedi. Mokotedi who is currently serving as Head of Legal Affairs at BOPEU said if the DPP rushes to take cases to court and charge before establishing the minimum evidence required to sustain a charge then it shows a chronic deficiency of competency and professionalism on the part of the DPP.

Further, the judgment and the criticism levelled on the DPP must serve as a moment of reflection by the DPP and their approach to the NPF case, he stated. Mokotedi explained that the public is bound to lose confidence on the DPP if high profile cases such as this one are thrown out of court simply because the DPP rushed to charge and take the matter to court without satisfying itself with the basics first. Managing Partner at Tamocha and Company, Kagisano Tamocha said the judges’ hard- hitting statements directed at the DPP in the judgment clearly raise doubt on the capabilities of the Director in the office.

He said even though the judgment might not weaken the case, it shows that things are not done properly at the Directorate. Tamocha however said anything is possible and could leave the case in shambles if most accused persons can successfully contest their prosecution. “Well we have a primary accused person in the case in Bakang Seretse, but remember he is also challenging the charges. If we can have Kgori Capital which was managing the fund at the time, surviving, then others can survive the same way.

“This judgment also says a lot about other cases that are before our courts where accused persons or those implicated want charges to be dropped and have their names cleared. The DPP director as a person has to be worried because this judgement is speaking to him as the holder of the office for having failed to analyse the evidence and satisfy himself that it is sufficient to prosecute. This puts the office in a bad light,” said Tamocha.

The DPP successfully froze Kgori’s accounts in 2018, arguing that the fund manager had helped itself to P10.5 million in management fees from the

NPF despite the non- existence of a valid agreement.

A bench of three judges CoA judgment said there was no evidence of criminal offence on the part of Kgori Capital more so that the DPP had failed to present any such. Delivering judgement Justice Louis Harms said that if the State had a claim to pursue criminal charges or if it had evidence of such, they could have replied to the director of Kgori Capital, Bakang Seretse’s affidavit.

The judge further explained that the money- laundering allegation against Kgori was baseless. He said according to evidence presented before court, Kgori openly dealt with investment portfolios, issued monthly invoices, provided reports and did not, as DPP claimed, went on a spending spree or hid the money.

The State also dropped charges against Kgori Capital, Alfonse Ndzinge and Sharifa Noor in March this year when indicting former Director General of DIS Isaac Kgosi.

It was alleged that while acting together with a common purpose on December 24, 2015 Bakang Seretse, Basis Points, Kgori Capital, Noor and Ndzinge corrupted the first accused person Kenneth Kerekang, a public servant and Mpho Kerekang to enter into an unauthorised contract with the 13th accused person, Kgori Capital in terms of which Kgori was to earn 0.80 percent of the total value of NPF assets managed by Kgori.