DPP appeals CMB directors’ High Court victory

Court of Appeal to preside over case during the ongoing October session

The Court of Appeal is next month expected to preside in a case in which the Director of Public Prosecution ( DPP) is appealing the acquittal and discharge of the directors of Capital Management Botswana ( CBM) ( Pty) Ltd.

The DPP is appealing the decision of Gaborone High Court Judge Boipuso Tshweneyagae who reviewed and set aside a decision by the DPP to charge CMB ( Pty) Ltd Directors and shareholders, Timothy Marsland and Rapula Okaile with various charges of obtaining by false pretences and money laundering. The court further set aside the warrant of arrest by the DPP issued in June and July 2019.

The court of appeal is scheduled to hear the appeal during the ongoing October session on the 2nd of November 2021. The DPP argues that the lower court erred in arriving at its decision.

The DPP and Attorney General had in the High Court opposed the review application, raising points in limine among them: that the application for review is out of time; the judge should recuse himself from presiding over the current application; Marsland has no locus standi before the court as he is a fugitive from justice; that the affidavit of Marsland is not properly commissioned nor authenticated in terms of the laws of Botswana and therefore not admissible before Botswana courts; and that the Applicants’ attorney Gabriel Kanjabanga and Kanjabanga and Associates lawfirm have a conflict of interest in the matter as they are potential witnesses, therefore they cannot represent the duo in this matter.

Justice Tshweneyagae said the offence of obtaining by false pretences specifically requires that an accused person knows that the representation which they make is to be false or that the accused know that the representation not to be true. The judge revealed that the record does not support the charges of money laundering and obtaining by false pretence. “At the heart of the charges against the Applicants is the En Commandite Partnership Agreement. This is the type of agreement in which there are one or more silent partners who contribute funds and are only liable for the capital invested. It has two categories of partners, that is, ( i) disclosed or general partners ( GP) and ( ii) the undisclosed or limited partners ( LP).

“The General Partners in the agreement are the private equity firms, while the limited partners are the external investors,” said the Judge who explained that, of the documents discovered, the most important and most relevant document is the En Commandite Partnership Agreement entered between CMB ( Pty) ltd and Botswana Public Officers Pension Fund ( BPOPF) which was entered into on the 11th of November 2014.

The Applicants argument was that the DPP acted unreasonably, irrationally and maliciously in charging them with offences of money laundering on the face of the En Commande Partnership Agreement. They argued that, they have never received any proceeds of crime or misrepresented and/ or induced BPOPF, the limited partner in the agreement to inject money in the Botswana Opportunity Partnership ( BOP) and that the funds from BPOPF cannot be regarded as ‘ dirty’ money.

Justice Tshweneyagae said he was persuaded by the Applicants submissions and had gone through the entire record but found no single evidence pointing to money laundering activities between the General Partner ( GP) and the Limited Partner ( LP) either directly or through their directors.

“In terms of the En Commandite Agreement, the Applicants had exclusive management of the funds invested in the partnership. In recognition of their exclusive investment mandate, the agreement provided for unlimited liability of the Applicants,” he ruled.

That, the investments could be in their names in this type of arrangement is not something outside the agreement, the Judge added.