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CMB case: Contractual dispute turns criminal matter

CMB case: Contractual dispute turns criminal matter
The matter involving the alleged missing P500 million of Botswana Public Officers Pension Fund (BPOPF) entrusted to Capital Management Botswana (CMB) could be an issue of contractual dispute not criminal matter.

The alleged missing funds were later reportedly fraudulently siphoned into foreign bank accounts leading to what turned into a high profile money laundering case.

It is safe to argue that just like Kgori Capital, CMB might be another victim of gross abuse of office and power by prosecutions authority.

In the case of Kgori Capital the Court of Appeal (CoA) on July 26, 2019 ruled that the Directorate of Public Prosecutions (DPP) had been wrong to elevate a commercial dispute into a criminal matter.

Before the CoA ruling, Kgori Capital had argued at the Lobatse High Court against a civil penalty order application made by the DPP in relation to the frozen P9,081,382.15 held in the asset management company’s accounts as management fees. The DPP has applied that the court pronounced that Kgori Capital, which was subcontracted by Basis Point Capital to be the investment and asset managers of the National Petroleum Fund (NPF) benefited from serious crime activity, and thereupon to order a civil penalty order against them for the respondents to pay to the government the money which the court ultimately determines, after assessment, were benefits from serous crime related activities.

The DPP argued that the fees were contrary to the P15.6 million Consultancy Agreement entered into by the government and Basis Point Capital.

The DPP was successful before the High

Court before the CoA ruled in favour of the asset management company. The CoA used a lower standard of proof that is the balance of probability, in arriving at the conclusion. In a criminal matter, the standard used is beyond a reasonable doubt, a higher standard to be proved.

Last week, Justice Jennifer Dube granted CMB director, Tim Marsland, bail from the Johannesburg jail, where he had been held since July 2019 at Botswana’s request.

The DPP believes that Marsland was involved in the misappropriation of hundreds of millions of pula from BPOPF.

When Marsland was arrested at the South African airport, he was flying to Germany at the instance of Director General of the Directorate of Intelligence and Security (DIS), Peter Magosi. It is now clear that the invitation to meet in Germany was a ploy to entrap him since he was not running away from South Africa.

Curiously, the summons were also never served on him, so he was not a fugitive as the DPP sought to portray him. In this particular case, it is clear that the DPP had also turned what was essentially a contractual dispute into a criminal offence. It was abuse of power and authority.


*Mogakolodi Masosote is a pseudonym of a senior attorney in private practice and writes about law for Mmegi.

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