DPP, ex-CMB bosses legal tussle rages on
Mpho Mokwape | Monday October 25, 2021 06:00
The parties are back at the Court of Appeal (CoA) where government is appealing a High Court judgement that cleared the former directors of the controversial misappropriation of P477 million Botswana Public Officers Pension Fund (BPOPF) funds.
According to the latest show, the State wants the High Court judgement previously won by the former bosses reversed on grounds that the directors, Tim Marsland and Rapula Okaile, have to account for the charges laid against them regarding the pension fund controversy.
The State believes the High Court Judge, Boipuso Tshweneyagae erred in granting the directors the reliefs they sought including the acquittal and discharge for the charges they were facing.
State’s court papers show that the former directors were rightfully charged for money laundering and obtaining by false pretence as the alleged offences were precipitated by financial transactions involving pension funds that were injected by BPOPF into an account managed by the CMB.
“The fund manager was under the control of the directors. The basis of the charges are that the ex-directors used the investment vehicle to fraudulently convert the funds obtained from the BPOPF for their personal use and other transactions unrelated to the intended purpose,” alleges State.
The State also believes that the lower court was wrong to grant the review of the charges on grounds that Marsland was rightfully charged as he was caught trying to flee the country to Germany, questioning why he was fleeing if there was no wrong doing on his part.
The appeal, which will be heard on November 2, 2021 comes after CoA’s Justice Isaac Lesetedi granted the director of the Directorate of Public Prosecutions (DPP) a stay of execution of the High Court decision as well as ordering that the appeal against that judgement be heard on an expedited basis.
When granting the stay and the urgent appeal, Justice Lesetedi said the appeal ought to be heard on urgency in the interest of justice as it also affects a substantial number of people who stand to benefit from the pension fund.
He said another point that makes the appeal to be of public interest and importance is the question of the DPP’s contested prosecutorial discretion.
According to Justice Lesetedi, there are several litigations before the High Court by sophisticated accused charged with white-collar crimes in which they challenged the DPP’s decision to charge them with criminal offences.
“Some of the decisions on those matters are on current appeal and it is important and in the national interest the question of the proper remit of the court’s powers of review in this regard is settled to avoid many appeals on the point,” said Lesetedi.
The appeal follows the Marsland and Rapula’s marathon court case and the subsequent acquittal and discharge of all charges that have been hanging over their heads since 2019.
This was after former CMB bosses filed a review application before court seeking the charges to be reviewed and set aside on grounds that the decision to charge them by the State was malicious and made in bad faith.
According to Justice Tshweneyagae, there was not enough evidence to charge the pair and it was clear that as directors all they did was as per the contract between CMB and BPOPF.
The judge had explained that according to the records and evidence, it was clear that during their course of partnership arrangements, disputes arose resulting in acrimonious relationship and also charges of money laundering and obtaining by false pretences.
“What ought to have been resolved by arbitration mechanism was turned into a criminal record. It is clear that the agreement provided for recourse between the parties in the event of a dispute was arbitration. It is unfortunate that a purely contractual matter was turned into a criminal case,” she said.