Sebina brothers' attorneys to grill Magosi
Oarabile Mosikare | Friday January 31, 2020 10:06
Magosi was moving an application in the Magistrate’s Court on February 13, 2019 for a warrant of entry, search and seizure in relation to Tshepho Tile Products, TTP, Estate Construction and Estate Property Investments.
Kegone and Tshepho Sebina own the companies. In the affidavit in support of the application, Magosi made it clear that the investigations then being carried out were directed against all those suspected to be associated with Isaac Kgosi, the former DIS boss.
Now the tables have turned as the Sebina brothers through their attorneys, Sepego Legal Practice amongst others have subpoenaed Magosi to appear before Kgerethwa today, give evidence and produce to the Court the several documents specified.
They want him to produce tender documents and award letters of the tenders allegedly influenced by Kgosi in favour of the applicants as stated in his oral evidence.
They also want him to tender banking details and transactions or any other relevant information relating to financial transactions that allegedly took place between the Sebina brothers and Kgosi.
These include the amounts and dates of such transactions as he stated in his evidence. Magosi is required to produce lists of properties allegedly linked to Kgosi and the applicants and the full details of such transactions as he stated in his oral evidence.
He should also tender all the documents linking the applicants with the former spy chief as he stated in his evidence.
In a letter dated January 15, 2020 to the Attorney General (AG), attorney Mompati Sepego wrote that the record of proceedings reflected that Magosi gave evidence to ostensibly augment and supplement his founding affidavit.
“It is from such oral evidence that an attempt was made to link one of our clients, Asphalt Botswana (PTY) Ltd to Mr Kgosi,” Sepego said.
He said from their perusal of the record, and a reading of the Magistrates’ Court Rules, they were unable to find a procedural endorsement of the adopted route.
He also said the procedure was fundamentally flawed and it cannot be allowed to remain as such. “Worst still, because such procedure was adopted in a defective ex parte application without an opportunity to the affected parties to refute the allegations.”
He added: “It is accordingly impermissible and grossly irregular for an applicant to seek to bolster its otherwise fragile case by way of consequent oral evidence.
Accordingly, the oral evidence subsequently tendered by Mr. Magosi should not have been permitted and, to the extent that it is tainted by conspicuous procedural irregularities, it ought not to have been relied upon by the Court”.
The attorney said in the event that there is insistence on the oral evidence remaining part of the record, and without countenancing the irregularity or waiving their rights, they would entreat for an opportunity to cross-examine Magosi.
“The probe will be geared towards testing the veracity of his testimony which clients view as unsubstantiated and untruthful accusations levelled towards them in a frantic determination to link them to criminal wrongdoing and justify the overtly intrusive orders obtained against them.”
He reminded the AG that it is common cause at this stage to, as accurately reflected by the ruling of the Court on their preliminary objections, that his clients enjoy the protection and favour of the right to be heard.
He asserted that the right to be heard, which is one of the cornerstones of natural justice, encompasses the right to confront and cross-examine one’s accusers.
“We highlight that, as matters stand, we cannot have the benefit of observing the demeanour which the witness exhibited on the stand when he gave his oral evidence.
Demeanour is a critical consideration so far as credibility goes and, as such, we will be starting at a disadvantage having been denied primary observation.”
As expected by some observers Magosi is avoiding the subpoena as the AG gave notice of objection to subpoena on January 28, 2020.
The AG wrote that the procedure adopted is irregular as the matter was commenced in terms of Order 29 of the Magistrates’ Court Rules, 2011.
He reasoned that there is no order of Court for calling of evidence.
The Sebina brothers claim to have been victims of harassment, threats and ill-treatment from a number of government departments which include DIS, Directorate on Corruption and Economic Crime (DCEC), Botswana Unified Revenue Service (BURS) and the Botswana Police.
Last year, in their notices to sue and complaint against law enforcement agents regarding the manner and conduct of investigations, they said this is despite the fact that they are and have always been law abiding citizens, religiously paying their taxes for themselves and companies and have always been given tax clearance certificates. They are also some of the biggest taxpayers in the country and do not nurture nor harbour any political office ambition.
They said on May 31, 2019 BURS requested certain documents from Estate Construction for purposes of tax assessment which they wanted to be provided by June 10, 2019, a date which was extended pursuant to a meeting held at DCEC offices.
In the request letter, the BURS wanted to be provided with company documents from 2008 to 2018, a period in excess of eight years, contrary to the provisions of the Income Tax Act.
“At the time of the request BURS had in its possession all the requested documents.
All other company records or documents had been seized and confiscated on or about 18th February, 2019 during a raid at the company offices by a team of state agents, which included BURS officers,” they said.
“The company strongly feels that the investigation into its tax records is not being done bona fide and does not expect to receive a just and fair assessment because of the events that took place preceding the date of the request and on subsequent days”.
The brothers explained that the current investigations were kick-started by an application in the Magistrate’s Court on February 13, 2019 for a warrant of entry, search and seizure.