Gerrie Nel ‘unkind’ swipe at State prosecution

Mpho Mokwape | Monday August 9, 2021 06:10

It would appear from the statements made by the prosecution and hired South African Afriforum lead Advocate, Gerrie Nel that the State was hoping to use the case as part of a broader push against powerful people within Botswana and South Africa (SA).

Evidently so, former president Ian Khama, former DIS boss Issac Kgosi and SA businesswoman Bridgette Motsepe-Radebe are all linked to the high profile allegations that P100 billion was stolen from the State by prominent people while Maswabi became the centre of the allegations.

However, this week the curtain fell on the marathon case when the State shocked the nation and announced that it will withdraw the charges to focus on gathering evidence. One may wonder why put the poor woman through so much agony for that long to only now say to her ''We do not have enough evidence to prosecute you for now'', when she had even on many occasions attempted to have her charges dropped.

The public has been wondering if the State really needed someone from outside to tell it what has been clearly evident in the proceedings and all it took was the arrival of the legal maestro, Nel for prosecution to finally take the plunge to withdraw the charges.

In his interview with this publication as to what prompted the decision, the legal hawk made it pretty clear that the case was headed for a disaster right from the beginning with so many things not having been done right from the start.

He made it clear that the only saving grace for the State was to retrace their steps, start all over again with a different manner of approach so as not to continuously prejudice the accused any further.

State Case

Advocate Nel said the 'Butterfly' case lacked what is known as the basics of prosecution which is simply getting the proper evidence to be able to make informed decisions about the case and its prosecution.

Nel told Mmegi in not so many words that the struggle by State prosecution to get a hand in the evidence from the law agencies was extra ordinary and very unusual as compared to other legal systems he has seen as a long serving prosecutor.

The 'bulldog' as he is affectionately known in the legal circle though cautious about the prosecution, it was clear that he was not impressed about the job done so far especially with the struggle to obtain evidence which might have seen the success of the case.

In his own words: "The struggle by prosecution to get evidence from law enforcement agencies is definitely extra ordinary and I am talking from a point of being a prosecutor for many years, in a different legal system, the basics of prosecution by the State remains. In this instance, DPP as a prosecutor must be in possession of all the evidence that can inform the decision and responsibly prosecute on behalf of the State. In this particular matte,r that's been lacking and I view that as extra ordinary,"

Nel said it was totally irresponsible to continue with the case without having all the available evidence. He pointed out that he was not trying to say when the DPP decided to prosecute there wasn't a case but it is just that one should know everything especially when a case was not a small matter.

He said chances of success on the case would have been so much more if all the evidence was present.

On the alleged fabrication of evidence by the State, the advocate said he has only been focusing on the evidence that was available and that as soon as he gets all the facts of the case he will be in a better position to shed light.

"What I know with the whole allegations of fabricated evidence is that there is an application before court to that effect and I will only be in a position to evaluate the facts once I have my hands on the evidence. It's difficult to say because I have been only focusing on the available evidence," Nel explained.

He noted that it would be irresponsible to comment on the issue because the application is before court.

Nel also showed his frustration about the difficulty encountered by prosecution in acquiring evidence to advance the case saying some high profile people were being evidently protected from exposure should the evidence be made available.

He said the legal mutual agreement between the two nations has not worked as there has been clear refusal to help the prosecution especially from the Minister of Defence in South Africa with the information that have been long sought since 2019, a clear indication that there were higher powers at play.

Though he refused to shed light on those he felt the system was trying to protect, it begs a question whether they are the same people initially linked to the allegations when the case first surfaced but were never charged or was there more to the list? Time will only tell and at the moment the taxpayers whose money has been used cannot do anything but wait. Meanwhile, the prosecution's withdrawal of the charges which was done with consent from the Director of DPP Stephen Tiroyakgosi, may be the last resort to save face but it is already facing objection from the defence team.

The consent certificate of withdrawal it reads: "The charges on possession of an unexplained property and false declaration for passport to be withdrawn without prejudice," which the defence team is opposing because they want the charges completely withdrawn and never to be brought back.

So the nation at this point that has been the most interested party in the proceedings, awaits the unfolding of events because the charges have not yet been official withdrawn by the court.

Butterly Case

When the allegations first surfaced, Maswabi was among others accused of having an intimate relationship with Kgosi on top of being accused of having money in different accounts but she was adamant that the State had it all wrong.

Through her ordeal, she maintained that the State had fabricated evidence against her and was trying to ruin her.

Maswabi, who through her court appearances kept the media and the public on their toes to get a clear glimpse of the woman labelled a 'terrorist financer' and who also carried what may have seemed like a prosecutorial attack, denied ever being in any intimate relationship let alone having signed or wired money anywhere as alleged.

Maswabi maintained that the allegations in the charge sheet and statements contained in the affidavit of Directorate on Corruption and Economic Crime (DCEC) lead investigator, Jako Hubona were defamatory as they falsely implicated her in money-laundering and financing terrorism. She is currently gunning for a P30m payout from the State on grounds that the deposed affidavit by Hubona was false and defamatory.

The affidavit contained allegations, amongst others, that she was a co-signatory with other people including, Motsepe for various bank accounts held in several banks held under entities known as Blue Flies company into which large amounts of money allegedly stolen from Bank of Botswana (BoB) were transferred.

"The allegation in the said charge sheet and Hubona’s affidavit are defamatory of client as they falsely implicate me in theft of large sums of money from Bank of Botswana, money-laundering and terrorism,” reads the notice.

Maswabi said the allegations were not only false but were deliberately fabricated to make her look like a thief.

The former senior intelligence officer's supposed innocence was also backed by experts who poked holes in the prosecution case.

Sandton-based Basileus Consilium Professional Services (Pty) Ltd (BCPS) was mandated by her lawyers to establish the authenticity of the evidence utilised in her court application whether companies Royal Bank of Scotland, Fire Flies Inc and Blue Flies Inc were registered in South Africa.

The scope of the BCPS digital forensic investigation was to establish the authenticity of the relevant evidence, particularly the e-mails, and render any related services as may be required.

In their investigative summary, they said the @protonmail.com domain appears in the e-mail addresses that were used.

“It is our conclusion that these emails are fabricated,” BCPS’s senior digital forensic analyst, Johan Benjamin Minnaar had said at the time.

Minnaar also said at face value, the documents, that is the High Court application annexures, appeared to be fraudulent as they could very easily have been produced by a word processor such as Microsoft Word, in order to provide a veneer of authenticity to those e-mails, which are relied upon in the High Court application.

In Minnaar’s affidavit before court, he concluded that the e-mails appear to be fabricated and fraudulent. He also concluded that the aforementioned companies are not registered in South Africa with the Companies and Intellectual Property Commission.

Reached for an interview through her lawyers Maswabi declined, only responding 'no comment for now'.

The case will be back to court on September 14 as her lawyers have rejected the withdrawal of charges by the state.

The contention being that the case should be withdrawn without liberty to reinstate the charges later as the State has indicated in the withdrawal certificate.

Unoda Mack and Uyapo Ndadi are the defence team.