Seretse, Co challenge State prosecutors
Mpho Mokwape | Monday April 20, 2026 06:00
In a detailed legal letter from Mack Buhuma Attorneys and Motswagole & Company addressed to the Director of Public Prosecutions, attorneys acting for Seretse, Sharifah Noor, Alphonse Ndiznge, Kgori Capital (Pty) Ltd and Kgori Holdings (Pty) Ltd argue that the ongoing criminal proceedings before the Regional Magistrates’ Court in Gaborone are unlawful and should be stopped.
The case that is currently pending at the Broadhurst Magistrates’ court stems from investigations into the handling of funds linked to the ountry’s NPF, a matter that has drawn public attention for nearly a decade.
Now, at the centre of the legal challenge is the authority under which the prosecution is being conducted. According to the defence lawyers, the prosecution team led by Thabo Malambane and supported by officers from the Directorate on Corruption and Economic Crime (DCEC) does not have valid constitutional authority to prosecute the case.
The letter states that on November 10, 2025, Deputy Director of Public Prosecutions, Oteng Thamuku, was delegated prosecutorial powers by the Director of Public Prosecutions. However, the defence argues that her subsequent decision to pass that authority to Malambane and his team constitutes an unlawful “sub-delegation.”
Citing Section 51A of the Constitution of Botswana, the lawyers contend that such powers may only be exercised by the Director personally or by officers directly subordinate to that office. They argue that officers from the DCEC do not fall under that category, as they belong to a separate state agency.
“The authority granted is void and ultra vires (acting or done beyond one's legal power or authority),” the lawyers state, asserting that the prosecution lacks the legal capacity to initiate or continue criminal proceedings.
Beyond the question of authority, the defence has also raised concerns about delays in bringing the case to trial. According to the letter, investigations into the NPF dealings began as far back as 2016, with charges initially brought against the accused between 2017 and 2018.
Those earlier charges were eventually dismissed by the Magistrates’ Court in December 2020 under a separate case number.
The current charges, filed in 2026, relate to the same underlying transactions, including allegations that the accused fraudulently claimed more than P31 million for a fuel levy collection system that was allegedly never delivered. Additional allegations include forgery and an attempted claim of P4 million for maintenance services that were allegedly not provided.
However, the defence disputes these claims, stating that the system in question was delivered and became operational in July 2017. They reference official correspondence from a government energy department confirming the system’s functionality at the time.
The lawyers further note that a separate dispute over the P4 million maintenance claim was settled amicably between the Government of Botswana and Basis Point Capital in 2023, with both a settlement agreement and a consent court order issued.
The defence argues that bringing new charges nearly a decade after the investigation was completed violates the accused persons’ constitutional right to a fair trial within a reasonable time, as guaranteed under Section 10(1) of the Constitution.
They also claim that the accused are being subjected to double jeopardy, as the matter relates to issues already addressed in earlier proceedings.
“The accused persons face an indictment concerning a transaction conducted 11 years ago. The length of time that has passed since the events in question is a decade ago and we are still here,” the letter states.
Another key argument raised by the defence concerns the validity of the underlying agreement that forms the basis of the charges. The consultancy contract between the Government of Botswana and Basis Point Capital, signed in December 2015, has already been the subject of litigation.
In a previous case, Kgori Capital challenged actions taken by the prosecution, and the matter eventually reached the Court of Appeal. The court ruled in favour of Kgori Capital, declaring the agreement valid.
The defence now argues that this ruling undermines the basis for any criminal charges related to the agreement.
They also maintain that decisions regarding procurement processes fall within the responsibility of government officials, not the accused parties, who were contractors or subcontractors.
The letter asserts that there is no reasonable or probable cause to believe that the accused committed any of the offences charged, and that the prosecution lacks sufficient evidence to sustain a conviction.
On that basis, the lawyers have called on the Director of Public Prosecutions to abandon the charges.
They have warned that if the request is not granted, they have instructions to approach the High Court to seek various forms of relief. These include an order to quash the charges, a review and setting aside of the decision to prosecute, and a permanent stay of prosecution.
Meanwhile, Seretse who is the first accused in a matter in the affidavit is asking the court to quash the charge sheet and discharge him from the case. His move comes after he engaged a new lawyer, Onalethata Kambai.
Seretse was served with the charge sheet on March 6, 2026 and appeared in court on March 12, where the charges were read to him. The case was then postponed to Tuesday this week where he was supposed to enter a plea. However, instead of proceeding with that step, he has now challenged the validity of the charges themselves.
“I humbly pray that this Honourable Court quashes the charge sheet and the charges against me and orders that I be discharged,” Seretse said in his affidavit.
According to Seretse, the charge sheet which forms the basis of the prosecution is invalid and cannot support criminal proceedings. He argues that without a valid charge sheet, there are no lawful charges before the court.
“There are no charges that have lawfully been preferred against me,” he stated.
The application has been brought under provisions of the Criminal Procedure and Evidence law, which allows an accused person to raise legal objections before entering a plea or proceeding to trial.
Seretse maintains that the issue before the court is straightforward and fundamental. “The charge sheet is invalid and of no force and effect,” he said.
Other accused persons through their lawyers also stood by submissions from Seretse’s affidavit, asking all 63 charges to be dropped.
The prosecution has yet to respond to the claims raised by accused persons in the affidavit. The case has been scheduled for April 22 for another hearing.