The Kebonang brothers, High Court Judge Zein and former minister, Sadique say they want the decision of the Director of Public Prosecutions to initiate and continue with criminal proceedings against them reviewed and set aside.
The two, who are both accused of dipping their hands in the P250 million National Petroleum Fund (NPF), say the decision to prosecute them without any valid evidence was subject to review.
Both the brothers state that the Directorate of Public Prosecutions (DPP) and Directorate on Corruption and Economic Crime’s (DCEC) conduct was a clear violation of their rights, malicious and unlawful abuse of power especially the constant systematic leaking of investigations.
“The leaking of evidence of investigations was also violation of the oath of the offices they occupied,” they argued.
In Sadique’s notice of motion filed on October 4, 2019, he argued that his criminal prosecution subject to the indictment of November 28, 2109 and committal to the High Court of August 21, 2019 was only based on the grounds of irrationality, bad faith, unreasonableness, bias and abuse of court process.
“Besides the review of the director’s decision, the application touches on the violation of my constitutional rights to equal protection of the law, and the right to a fair trial, which are being violated by an unjust and unwarranted prosecution, leaving me with no choice but to seek a redress,” he said.
He also submitted that the DPP’s belief in probable guilt must be based on the likelihood that proof beyond reasonable doubt could be achieved but in his case the decision was not based on any reasonable belief. Meanwhile Zein also argued that since the beginning of the case, the State has failed on many occasions to bring substantial evidence before court.
He explained that a typical example was the particulars that his attorney requested from the State and it failed to honour it.
“The response to the request was provided,
Kebonang accused the DPP of malicious prosecution, intentionally driven to destroy him. He further accused the DPP of contriving charges against him and concealing documents in order to prosecute him on a lie.
Zein said the plan to destroy him is not accidental but has been planned and coordinated by the DPP through a number of newspapers and deliberate leaks and falsehoods.
The brothers’ attorney, Unoda Mack who is seeking a withdrawal and discontinuance of the charges against his clients said the charges were baseless especially that the brothers are accused of being engaged in transactions involving property by transfer of various sums of money from accounts belonging to or held by Basis Point Capital and M&B Properties.
“My clients could not possibly have been involved or engaged in the alleged transactions to case the transfer of monies from the said accounts as they were not signatories of the said accounts and it will be hard for the State to prove, therefore we seek for the review of the director’s decision,” he said.
On another level, both applications came before court yesterday where a panel of three Judges, Christopher Gabanagae, Abednego Tafa and Matlhogonolo Phuthego presided.
The three Justices have ordered the State to file its opposition papers if any by November 27 and prosecutor Wesson Manchwe undertook to relay the order of Court to the Attorney General who was not in court. The case will be back in court on November 27, 2019.