The accused persons in the ongoing National Petroleum Fund (NPF) money laundering case have approached the Court of Appeal (CoA) in a bid to protect their assets, which the State has applied to forfeit.
Bakang Seretse and his co-accused approached the Court this week seeking to stay the proceedings at the High Court where an application for civil forfeiture of the assets filed by the State is pending.
According to their attorney, Kgosietsile Ngakaagae their efforts made at the High Court to stop the proceedings were frustrated by the presiding judge, Justice Dr Godfrey Radijeng when he refused them leave to appeal his decision that the State duly filed the forfeiture application and the extension of the statutory filing period of such.
He explained that the Judge erred in dismissing their application for stay of proceedings pending the final determination of
“The application was dismissed even though it was evident that the State filed the substantive forfeiture application after the 28 days,” he said.
Ngakaagae explained that the stay was necessary because the filing of the substantive forfeiture application outside the prescribed period, with leave of the Court but the State never sought leave to do so and no leave was ever granted.
He pointed out that they were seeking the stay of proceedings, as they want to appeal the decision of the Court rejecting their contention that the asset forfeiture application was brought out of time.
“Even in Court the State conceded the arithmetic fact that the application was brought outside the required 28 days. In essence, the court’s decision that the intervening activity constituted an extension, without more was clearly in error and is unsustainable. The court did not state what terms of the extension were,” he said.
Further Ngakaagae said there was also a dispute of fact that the State was trying to introduce by a way of the affidavits.
He noted that for example, one of the accused, being former spy chief Isaac Kgosi in the founding affidavit stars as a State witness against the other accused and that the case was anchored upon his affidavit.
But in the affidavit for which leave was sought, Kgosi is portrayed as the ultimate conspirator who lied and fraudulently obtained money from the State, Ngakaagae continued to argue.
“The affidavit sought to be filed is a last ditch effort on the part of the applicant to breathe life into what is essentially a dead case by changing the cause of action and the grounds to support the same.”
The State on one hand wants the application by the defence to fail on grounds that the challenge, based on the filing of the forfeiture application allegedly
Prosecutor, Ernest Mosate said the challenge of the decision made by the High Court was not a definitive of the substantive rights of the parties and therefore not appealable as it was interlocutory.
“The refusal of the Judge to stay the proceedings is well founded and not erroneous as the point in issue was not dispositive of the rights of the parties and in any event was just a procedural issue,” he said.
He further explained that it was worth to note that in considering the application, the court observed that the applicants made no attempt at addressing the element of prejudice to them when the application was made.
Meanwhile application for stay of proceedings by the defence comes following the Directorate of Public Prosecutions (DPP) being given the green light to file more evidence in their quest to recover more assets related to the NPF money laundering scandal.
High Court Judge, Justice Radijeng allowed DPP to file more supplementary affidavits to its main civil forfeiture application they had filed as an attempt to recover the remaining assets.
This was after the DPP filed to be given leave to file more additional papers on condition that at the time the main application was filed, investigations were still on initial stages and that more information came into light.
When he delivered the judgement, Judge Radijeng said the DPP’s explanation to seek leave to admit supplementary affidavits to be reasonable considering the nature of the evidence to be introduced by the affidavits.
“The material to be introduced in the affidavits are relevant to the main application and it would be in the interests of justice that this court admit the supplementary affidavits,” he said.
The Judge explained that the respondents were missing the point and had not spelt out the nature of the prejudice that would befall them should the application be granted.
He pointed out that the respondents made no substantial comment on the alleged purchase of equipment from a foreign entity called Dignia Systems Limited and the DPP’s averments of its relatedness to the alleged contravened statutes.
Justice Radijeng said DPP had submitted that due to the magnitude and complexity of the matter, not much had been achieved in the 28 days by way of investigations.
Justice Zibani Makhwade reserved judgement for September 25, 2020.