Bakang Seretse wins his millions back
My companies risk being liquidated
My crime is that I am perceived to be a Khama ( former President Ian Khama) loyalist, which whilst there would be nothing wrong with it, is simply untrue - Seretse
Another accused person in the controversial P250 million National Petroleum Fund ( NPF) Bakang Seretse scored a massive victory against the state when Lobatse High Court ordered that the state should return his assets.
The court ordered that the assets be returned within 24 hours. Seretse contended that the state has been unlawfully holding the assets while a court restraining order against him not to have access to the assets long elapsed.
Seretse together with his companies Khulaco ( Pty) ltd, M & B Properties ( Pty) ltd and Leomog Investments ( Pty) ltd had taken the Attorney General, Director of Public Prosecution ( DPP) and the Receiver ( which is constituted in terms of the Proceeds and Instruments of Crime Act [ CIPA] to court.
He argued that currently the respondents have no order, upon which they are holding the properties. The properties sought as a matter of urgency included a balance of P69 734, 260 previously standing to the credit of a bank account at Capital Bank Botswana held by Khulaco ( Pty) ltd as at 30th November 2017; P10 881, 045 standing to the credit of M & B Properties ( Pty) ltd previously held at Capital Bank and is presently held by the Receiver; P199 971.00 standing to the credit of M & B Properties previously held with Capital Bank; P430 000.00 standing to the credit of Bakang Seretse account previously held with National Bank Botswana and is presently with the Receiver; P384 600.00 standing to the credit of Bakang Seretse previously held at FNBB and now with the Receiver; and P750 000.00 standing to the credit of Leomog Investments previously held by FNBB and now with the Receiver.
Lobatse High Court Judge Gaolapelwe Ketlogetswe on Wednesday this week arrived at the conclusion that the Applicants are entitled to the relief they sought. He also agreed with the Applicants that the matter was urgent.
“The Respondents’ continued retention of the Applicants’ properties on the basis of the restraining order of 13th December, 2017 be and is hereby declared unlawful.
“The Respondents be and hereby ordered to restore to the Applicants the properties listed as the 2nd Respondent; the 4th Respondent; the 5th Respondent and the 10th Respondent in the restraining order of 13th December 2017 in case No. UCHGB- 000370- 17 within 24 hours of this order,” Justice Ketlogetswe said.
The judge indicated that the 2nd Respondent ( DPP) has only himself to blame for having erroneously thought he can fail to follow a court order and still hope to reap benefits from his failure.
Even if the 2nd Respondent may believe wrongdoers, that the the law Applicants dictates that are even a wrongdoer must be dealt with in accordance with justice and the law, said Justice Ketlogetswe adding that the Applicants in casu are in no different position and cannot reasonably be expected to expect less from the law.
He explained that the issue before court is whether or not there is legal basis, purportedly founded on the order of court of 13th December 2017 for the continued detention of the Applicants’ properties by the 2nd Respondent ( DPP) through the 3rd Respondent “and the answer to that question is undoubtedly in the negative.”
Seretse who stands accused of laundering the National Petroleum Fund ( NPF) P250 million feared that he could soon go under the hammer and not survive if the state continued to refuse to release his assets.
Through his lawyer Kgosietsile Ngakaagae, Seretse revealed that there is fear of some of his companies being liquidated. Ngakaagae said the state is unlawfully holding onto his client’s assets among them money and property.
He said the state is unlawfully holding the assets because a court restraining order against his clients not to have the assets long elapsed. “There are impending notices of liquidation. My clients are facing a threat of non- existence. If liquidation is effected, there is nothing to recover. This is like saying litigate from the financial grave. Clients have resources that they can fall back on but they are held against them.
“When they are faced with nonexistence threat they should be allowed access to the assets. The DPP will have remedy through PICA to obtain forfeiture and can also get civil prosecution.
“The restraining order was issued on 13th December 2017 and the 28- day period lapsed in January 2018. There was hope that by then the properties will be released. This is a case where circumstances made us to come here on urgency,” argued Ngakaagae on behalf of his client. Seretse in his affidavit indicated that it will be gravelly unjust that they should be permanently ruined while the state is unlawfully holding on to the property. He said COVID- 19 has hit him and the companies hard and business has completely dried up on account of successive lockdowns.
“Basis Points and its subsidiary, M & B Properties are facing liquidation on account of debts that have remained unpaid since the restraining order was granted on the 13th December 2017. Notice has been given by creditors, in that regard.
“The Applicants have been severely crippled in their business on account of the unlawful retention of their property. The business of Khulaco ( Pty) ltd, Basis Points Capital ( Pty) ltd, M & B Properties ( Pty) ltd and
Leomog Investments ( Pty) ltd have suffered greatly.
“In-fact the respective companies are nearing complete closure. As at the end of October 2020, they will not be able to pay salaries. Same are already in debt and living purely at the mercy of creditors.
“The threat of liquidation has not existed until now even though the debt has existed for a long time,” said Seretse adding that as a sole shareholder he has vested interest in their validity.
He said as it is the Respondents have no order, upon which they are holding the properties. Directorate on Crime and Economic Crime ( DCEC) Deputy Director Advocate Ernest Mosate argued that most of the financial issues raised dates as far back as 12 months.
He said by coming to waive them in court cannot stand unless demonstrated which he said the Applicants failed. “These ones they have lived with them for that long. They have tried tricks before. They have not demonstrated the urgency of the matter.
“Applicants have to show that there is no satisfactory remedy available. There was no time frame as to when the restraining order will lapse. When the restraining order lapsed in January 2018, what stopped them from coming to court,” argued Advocate Mosate.
Seretse avered that he cannot source credit because the DPP has paraded him to the country and the media and all financial institutions as a fraudster. “The present state is such that my companies, the Applicants herein, are being ruined before I could even get a hearing.
“Even where I have been given my right to the property by reason of a court order, as in the instant case, the Respondents choose to behave unlawfully and to frustrate me and my business. Not so long ago, NBFIRA wrote me letters seeking to close my companies down. “I have no doubt that they have been weaponised against me by the 2nd Respondent ( DPP)’ s office and its political handlers. My crime is that I am perceived to be a Khama ( former President Ian Khama) loyalist, which whilst there would be nothing wrong with it, is simply untrue,” Seretse revealed in his affidavit.
Advocate Mosate said they are concerned about these allegations as they could have a negative impact on the office of the DPP. He said to be accused of launching politically motivated charges and riding on the sympathy of the judiciary should be condemned.
He argued that the courts deal with matters of substance and evidence.