State allowed to retain Seretse’s assets
Lobatse High Court Judge, Gaopalelwe Ketlogetswe has declined to hold the state in contempt of court in a case in which businessman Bakang Seretse wants government to release his P82 million worth of assets.
The judge granted the state permission to continue with the retention of Seretse’s assets while awaiting the matter to be finalised at the Court of Appeal ( CoA) and dismissed Seretse’s contempt of court application against the State. Justice Ketlogetswe stated that this was an appropriate case where an order staying the execution of the court order of November 4th, 2020 pending finalisation of the State’s appeal at the CoA. Ketlogetswe stated that the aspect of stay of execution was mainly about whether there is irreparable harm to be suffered if granted or not.
Seretse wanted Attorney General- Abraham Keetshabe, Director of Public Prosecution ( DPP)Stephen Tiroyakgosi and the Receiver- Bafi Nlanda to be jailed for defying a court order to release his assets. Seretse avers that the state has been unlawfully holding the assets because 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 have taken to court Attorney General, DPP and the Receiver ( the office of the receiver is constituted in terms of the Proceeds and Instruments of Crime Act [ PICA]). He said as it is, the respondents have no order, upon which they are holding the properties.
The properties sought as a matter of urgency are among others 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 First 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.
When dismissing the application, Justice Ketlogetswe concurred with the State that it could not be judged to be in willful contempt of court as they pleaded that, noting an appeal automatically stayed the execution of the court order that compels them to release the seized properties. He explained that the properties sought to be restored to the applicants are a subject of a restraint order whose validity is now being questioned by the applicants. It is Justice Ketlogetswe’s view that the issue is now beyond the reach of the high court at this stage of the proceedings, and can only be resolved by the appeals court.
“I do not think that it is open to doubt that the Court of Appeal, per Makhwade J. A., supra, did not make any definitive finding that the order of court of 13th December, 2017 in relation to the running of the dies of 28 days within which to file an application for forfeiture by the respondents in casu, was extended. I am fortified in this view, not only by the careful wording of Makhwade J. A.’ s ruling in relation to that faint argument, but also by the fact that the 28 days within which the restraint order could remain valid was a matter also of statutory provisions.
It was a period prescribed in terms of s. 39 ( 2) of PICA. And whether court could extend such a period is a matter that is not germane to the issues at hand. What is important however, and that which is decisive in the present proceedings, is the fact that Radijeng J, in his ruling of 19th October, 2018 held that by his order of 27th December, 2017, he had, by effect, extended the period. This is a matter beyond the reach of this Court now, and even as at the time I dealt with the main application, had the issue been properly raised before me,” pointed out Justice Ketlogetswe.
Justice Godfrey Radijeng had granted the restraint order on December 13, 2017 and the State filed its application for forfeiture on January 1 8, 2018 when the 28 days period had lapsed. Ketlogetswe said he was unaware that there was another judgement by Justice Radijeng extending the effectiveness of the restraint order, as it was never brought to his attention by the parties at the hearing of the main application. It is also worth stating that the civil forfeiture proceedings instituted by the respondents against the applicants are pending before Radijeng J, explained Justice Ketlogetswe.