How Seretse failed to discredit the DPP case
Oarabile Mosikare | Friday January 19, 2018 17:25
Seretse had opposed the interim order granted having anticipated it. In terms of the Director of Public Prosecutions’ (DPP) affidavit, P230 million was disbursed from the National Petroleum Fund (NPF) by the fund managers, Kgori Capital (Pty) Ltd to a company, Khulaco (Pty) Ltd not concerned with the business of Government, and contrary to the Public Finance Management Act.
The DPP averred that the funds were used for a purpose outside the defined special purpose of the NPF. The applicant further averred that money derived from the disbursements have found their way into the accounts of various companies associated with the Director of Khulaco and his personal accounts having been used to purchase properties for other individuals and associates of the said director.
It was averred that there is reasonable belief that serious crime related activities are being committed, hence the prayer for restraint of the listed properties as proceeds of crime.
“The applicant averred that the P250 million disbursement to a Khulaco (Pty) Ltd account at Capital Bank was not approved by the NPF Management Committee, did not follow established procedure for disbursements, there was no tender for the project, and one Kenneth Kerekang alone purported to approve the request by the Directorate of Intelligence and Security (DIS) on same date (7th August 2017) the request was made by DIS. It was averred that Mr Kerekang had no authority to approve same as the authority to approve lay with the Fund Management Committee,” Radijeng said.
It was further stated that the management of the NPF vested in Basis Point Capital in terms of management contract signed with the Department of Energy on December 16, 2015 for three years. It was also said that Kgori Capital was appointed by a letter signed by Kerekang to be fund managers despite the existence of the contract signed with Basis Point Capital.
In his answering affidavit, Seretse said there was lack of honesty and deliberate non-disclosure in the founding affidavit by the applicant and that the interim order was obtained by misinformation and misrepresentation of facts.
“The respondent averred that the applicant does not state specifically who breached the National Petroleum Fund Order, the Public Finance Management Act and the Penal Code sections referred to in the founding affidavit.
The respondent averred further that the applicant hides behind generalities and fails to draw a nexus between any of the persons affected by the reliefs in the order of the Court and the crimes alleged to be committed. In particular, the respondent noted that no charge has been laid against him or the companies he represents in respect of the alleged violations.”
Seretse in essence asserted that the transaction founding the disbursement of money to Khulaco was an approved Government transaction and that the trail of authorisation had been established by the respondent.
He also averred that there was not money laundering or fraudulent misappropriation of Government money in the sum of P230 million.
“The respondent submitted that if there was misappropriation of such funds, then the Director General of the Directorate of Intelligence and Security, the Permanent Secretary to the parent ministry to which the Department of Energy falls, and the portfolio minister would have been charged along side the respondent for the alleged fraud.”
In the judgement Radijeng agreed with the DPP that in obtaining the interim order, there was no lack of honesty nor deliberate non-disclosure by the applicant as suggested by Seretse.
“The applicant in reply has denied the alleged discussion or agreement in relation to the 20% commission payment claimed by the respondent to have been agreed to by the Government. In my view this has not been gainsaid or controverted by the respondent in material terms. The respondent has in answer merely asserted that it is entitled to the 20% commission while the applicant’s contention is that there was no agreement as alleged by the respondent between the Department of Energy on the commission due.
“It appears to me that the respondent cannot claim to have been entitled to the commission merely by announcing or declaring it to the other party without proof of confirmation of such agreement by the relevant department or ministry,” Radijeng pronounced.
He said he was satisfied that the DPP has made a case by being concerned about the manner in which the P230 million was acquired and dealt with in the acquisition of properties or payments made as a result of that initial transaction.
“I take the views that the respondent in his answer has not discredited the premise of averments made in obtaining the interim order.”
Finally, the Judge confirmed the interim order granted to the DPP on December 13, 2017. The respondent is to pay costs of this application.