The incarcerated director of Capital Management Botswana (CMB), Tim Marsland has accused Directorate on Corruption and Economic Crime (DCEC) of investigating him with a predetermined bias in mind, which bias he said operated against him.
He said this in his replying affidavit filed at Lobatse High Court on July 15, 2020.
Marsland was replying to the answering affidavit deposed by DCEC investigator, Kentse Setaboshane.
Marsland is accused of misappropriating P477 million belonging to Botswana Public Officers Pension Fund (BPOPF) entrusted to CMB. On the contrary, he said despite concessions by the respondents, being the DCEC and Directorate of Public Prosecutions (DPP) amongst others, money drawn down by CMB was used for the intended purpose in as far as Bona Life and Cell City are concerned, but in a rather sheer act of malice, bias and outright bad faith towards him, the respondents attached a charge sheet that reflected that he had been charged in terms of count one and five for the very same monies which they said the money drawn down had been used for the intended purpose.
“These charges are evidently malicious and preferred in bad faith and more critically it could not objectively be said that a reasonable suspicion existed when the investigating officer in the matter concedes that investments as regards Bona Life and Cell City were used for the intended purpose,” Marsland said.
He added that regarding investments for Wilderness Safari and Kawena Holdings, the respondents conceded that monies had been paid for such investments.
“Further, Setaboshane seems to be concerned about what happened to the money that bought shares in these different portfolio companies when that should not even concern him. His focus and concern should be whether shares or equity was purchased as claimed by CMB (Pty) Ltd,” he said before adding that as regards what happened to the purchase price or money that bought shares is up to the seller to determine and decides what he wants to do with the money.
He further submitted that as the seeking of a warrant of arrest has implications for the liberty of
“What follows from the aforesaid is that a reasonable suspicion cannot be said to exist where an investigation has been conducted with a biased slant, which is the case in this matter.”
Had Setaboshane taken effort, he said, which the investigating team was duty bound to do, to obtain all of the documentation in the possession of the liquidator, he would have discovered that each and every transaction had been lawfully done and that there was no criminal conduct.
“However taking into consideration that Setaboshane seeks to avoid having to do work properly by relying on a so-called very low standard to proof a reasonable suspicion, I submit that in the absence of a completed and proper investigation, a reasonable suspicion cannot be said to have been established.” Moreover, Marsland said the DCEC investigator claimed that he had incriminating evidence in the form of bank accounts and other documentation, which he had failed to place before Court.
That the most important evidence, which are share certificates and share purchase agreements or directors registration forms of the different companies in which the purchase of shares were made, Marsland said Setaboshane ignored or did not say anything about that.
He also said an impression was sought to be created that he took the money and ran away to South Africa, which is not true because he has always been a resident in South Africa.
“In terms of the contractual arrangement, CMB and therefore its directors were entitled to charge professional fees and earn funds as a result of the professional services rendered.
CMB was also entitled to effect disbursements in order to give effect to the investments being made.”