State vs Seretse ‘guessing game’
Mpho Mokwape | Wednesday May 4, 2022 06:00
Brand on Friday explained that the case has not even established any criminal doing by Seretse but boiled down to a breach of trust by Kenneth Kerekang, the former director of energy in the then Ministry of Minerals and Water Resources.
Bakang and Kerekang were among those who were accused by the state of dipping their hands in the P250 million belonging to the national treasury, National Petroleum Fund (NPF) when the scandal broke in early 2019.
When ordering for the return of Seretse’ properties, Brand said the applicant for a civil forfeiture order needs to show that the owner of the property was engaged in criminal activity not based on any speculation or conjecture.
“This follows from the legal construct that forfeiture proceedings are not directed at the owner but at the property itself. Hence it is the property, not its owner that must be linked to serious crime. The applicant on balance of probabilities needs to show that the property was derived from proceeds of serious crime related activity by someone,” he said.
He noted that on the present case allegations made by the state covered many pages and that perusal of those pages revealed that the case relied on wide ranging accusations of crime against a whole number of people but at last as the proceedings became clear to all concerned, was that very few of those allegations were supported by established facts as opposed to speculation and conjecture.
“Accordingly, when the dust settled at the end of the argument on behalf of state, the respondent’s case was confined to one crime committed by one person only namely breach of trust by Kerekang,” he said.
Brand said if at all there was any link between what the state alleged about Seretse, as the court there was need to establish if Kerekang had indeed breached trust.
He pointed out that on that note they had to question if he intentionally acted contrary to the good of the public explaining that on established facts Kerekang authorised the payment at the request of the Director of Directorate of Intelligence and Security (DIS) for the furtherance of a project that had previously been funded by NPF.
“In addition, it is apparent in the state’s case that the Minister of [Minerals and] Energy also thought that the disbursement was legitimate and that he said so at a meeting held where Kerekang was present shortly after the disbursement had been authorised. The Permanent Secretary and chair of NPF, who clearly seeks to pass the buck to Kerekang, also did not object to the disbursement at the time. He in fact authorized the variation of use which led to the acquisition of military equipment,” Brand explained.
The judge said there was no evidence that Kerekang was aware that the DIS had used the disbursement for funds for purposes other than the construction of petroleum facilities.
On the transactions on being investigated, Brand made an example of the P42m that was paid to Basis Point Capital on behalf of Khulaco company, saying though the relationship between the two companies was not clear except that Seretse was the deciding mind of both entities as well as Kgori Capital.
He said in that instance they had to accept that the payment was made in terms of a contract between Seretse and the Department of Energy.
“It is true that on the face of it the amount of P42m appears to be an inordinate amount of money for services rendered. But the reasonableness of this amount was never investigated. Even if it could be said to constitute an act of overreaching by Seretse, this would be a far cry from establishing criminal activity,” he said.
Justices Brand, Monametsi Gaongalelwe and acting judge Abedinigo Tafa heard the appeal.