Last week the apex court overturned the High Court judgement that Kgori Capital and its directors that they benefitted from serious crime-related activities and that the value of the benefit amounted to P10, 525,768.79.
The Court of Appeal (CoA) case related to an order of a civil penalty granted under the Proceeds and Instruments of Crime Act by Justice Godfrey Nthomiwa against Kgori and its directors pursuant to an application by the Directorate of Public Prosecution (DPP). Regarding the Kgori judgement, the following questions arise:
l The Directorate of Intelligence and Security (DIS) has never denied engaging Khulaco to transact on its behalf. The issue in dispute was the commission paid. Khulaco has advised government in advance of its 20% commission and they were told to proceed executing the mandate.
l If there was a dispute on the commission, this became purely contractual and not a criminal one. Directorate on Corruption and Economic Crime (DCEC) and the DPP sought to criminalise the transaction first by hiding the DIS/ Dignia Systems contract and hiding the fact that government had received delivery of its goods from Israel.
Then, there is the issue of the Kebonang twins. When it comes to the twins, it is common cause that Judge Zein Kebonang was paid by Basis Points Capital for the consultancy project he did while still employed by the Botswana Communications Regulatory Authority (BOCRA). In terms of the Kgori judgement, the State has no business in that private dealing. The payments did not come from government and could not give rise to a criminal charge.
Basis Points Capital has never complained of being defrauded and so the DPP cannot criminalise such private dealings. As for former Minister Sadique Kebonang, it is common cause that
This spy war has nothing to do with anything other than vengeance. Peter Magosi believes Kgosi had him dismissed from the army and he sees his appointment as an opportunity to get even with Kgosi and former president Ian Khama. President Mokgweetsi Masisi is not getting any objective or fair intelligence briefings. He needs to realise this and do so soon.
“It does, accordingly, appear that the DPP sought to escalate what essentially is a contractual dispute as to interpretation and may be rectification to a criminal matter.”
– Justice Louis Harms