Ex-CMB bosses to face charges again

Mpho Mokwape | Monday December 6, 2021 06:00

 

Tim Marsland and Rapula Okaile were allegedly involved in the controversial misappropriation of P477 million of funds of the Botswana Public Officers Pension Fund (BPOPF) where they successfully fought the case at the High Court for charges to be dropped. Now the pair has been dealt a heavy blow as a full CoA bench this week granted the state a chance to bring up the same charges in an appeal against the previous judgment in a case that included money laundering charges among others.

According to the bench comprising retired CoA judge president Ian Kirby, Justices Isaac Lesetedi, Monametsi Gaongalelwe, Singh Walia and Leatile Dambe, Justice Boipuso Tshweneyagae's High Court judgment to acquit the pair was full of errors and that it did not reflect the law in a number of aspects. Justice Lesetedi said when granting the state the chance to appeal that it was with limited points the proceedings in the High Court were beset by a number of errors. “I do not intend to deal with all the errors in the judgement of the court a quo save to point out that it does not reflect the law in a number of respects,” he said. Lesetedi explained that it was the duty of the Executive not only to investigate the commission of crimes but to also bring the suspected offenders before the courts to be prosecuted for such offences and that the duty was a constitutional one.

He pointed out that it was the role of the courts to determine whether or not such criminal charges have been proven and that it would usually be after hearing oral evidence and upon the credibility of witnesses having been subjected to cross-examination where the accused had pleaded not guilty. “In that exercise, the hierarchy of the courts is generally to be observed with the State Prosecution Unit to decide at what level a charge is to be brought or an indictment lodged. In this case, the state failed in applying the ordinary rules of judicial review in the challenge to state’s decision to prefer charges against the former directors,” he said.

Justice Lesetedi explained that as done in foreign countries, an application challenging the state’s prosecutorial discretion to prefer criminal charges must demonstrate that there has been an abuse of power as alleged by the former directors, noting that a mere change from an earlier view on whether or not there was sufficient evidence to prefer charges does not amount to an abuse of process. He said it can be expected sometimes as investigations continue or as the case unfolds that charges may change, be amended, or be withdrawn while new charges may even be added and that it would, however, amount to an abuse of process only if the prosecution acts under the coercion or influence of third parties.

The judge emphasised that if abuse of process has been established, the next stage in the enquiry becomes whether on the docket there was probable cause for prosecution. “The court, however, did not adopt that approach. It delved into the merits of charges seeking to satisfy itself on whether the material on the record met all the essential elements of the offences upon which the warrants of arrest were issued,” he said.

Further, Lesetedi pointed out that the High Court to completely ignore the state’s answering affidavits deprived that court of a balanced assessment of the evidence before it, especially that the affidavits concisely set out all the transactions involving the alleged funds. The reversal of Justice Tsweneyagae’s judgment comes after the state has said 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 CMB.

The state also believed 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 wrongdoing on his part. Meanwhile, before the acquittal and discharge of one of the ex-boss, Marsland had filed a review application challenging the director of the Directorate of Public Prosecutions (DPP) and the Attorney General's decision to prosecute and charge them with various charges including obtaining by false pretences and money laundering.