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Ex-CMB boss escapes criminal prosecution

MPHO MOKWAPE
Okaile PIC: MORERI SEJAKGOMO
Former director of the troubled Capital Management Botswana (CMB), Rapula Okaile has escaped prosecution after the High Court dropped his criminal charges that were pending before the Magistrate’s Court.

Okaile, who once led the now under liquidation CMB, has had criminal charges of attempting to obtain by false pretence hanging over his head since 2019 following allegations of misappropriation of public funds by the asset manager.

He was together with CMB charged by the Directorate of Public Prosecutions (DPP) after Botswana Insurance Fund Management (BIFM) reportedly made a police matter  accusing the pair of trying to defraud Botswana Life of its funds held at a certain First National Bank Botswana (FNBB) account.

The particulars of the case are that Okaile in his personal capacity, Tim Marsland, CMB, represented by Okaile on January 25, 2018 in Gaborone acting together and in concert, with the intent to defraud BIFM attempted to obtain a sum of P80, 460, 095.21 by issuing an instruction to FNBB to transfer the said amount from a bank account belonging to BIFM to an FNBB account held by CMB on false pretence that they had legal rights over the funds in question when in fact and truth he knew that the said representation was false.

Subsequently, he brought an application before the High Court for review of his charges and a permanent stay of prosecution after accusing the State prosecutor of being irrational even when they knew the facts about the case.

Lobatse High Court Judge, Reuben Lekorwe agreed with Okaile.  Lekorwe said for the State prosecutor to charge Okaile was irrational and unreasonable because the evidence brought against him was so tenuous to have justified any criminal proceedings in the first place.

“The decision to institute and maintain criminal proceedings against the applicant is reviewed and set aside.

The evidence has failed to meet the minimum threshold of ‘reasonable and probable cause’ for charges more so that it does not appear that to me that the evidence in possession of the prosecutor shows that the applicant had done some cognisable act towards the intention to defraud either FNBB or BIFM,” he said.

According to the judgement delivered on March 29, 2021 following Okaile’s application for a review of his charges, there was no evidence showing that he had any intention to defraud anyone as alleged by the prosecutor because at the time the funds were held by FNBB, he and the other director, Tim Marsland, had access as they were both signatories.

Lekorwe explained that the prosecutor ought to have known that Okaile and Marsland as directors of CMB at the time had authority and mandate to transact on the accounts.

He also pointed out that he agreed with the applicant that

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the funds as long as they remained in the account belonged to FNBB and not BIFM as the charge sheet alleges and that if the rightful owner of the funds was the bank, the effect of the transfer was to move the funds within FNBB and at no point would have the bank divested of ownership of the funds. “At the time of attempt to transfer the alleged funds they were no longer there, having been debited making it impossible for one to attempt to steal money that is not there,” reads the judgement.

The Judge said since the parties differed only on the interpretation of the facts not their existence, it was common cause that the bank accounts were held and are still held by CMB with Okaile and Marsland being authorised signatories meaning that conventional banking practice meant that they would have access not only to information relating to transactions of the accounts but would also be the ones transacting on those accounts.

“It is usually not the business of the bank as to who the true claimant to the funds in a particular client’s bank account is,” he said.

Meanwhile the case’s background is that Okaile, Marsland   and CMB on or about January 25, 2018 in Gaborone acted together with the intention to defraud BIFM, attempted to obtain over P80 million  by issuing an instruction  to FNBB to transfer the said amount belonging BIFM and held by CMB on false pretences that they had legal rights over the funds in question when they knew that the said representation was false.

BIFM and CMB, both in the business of fund management had in 2005 formed a joint venture company called BIFM Capital for purposes of managing Botswana Life’s annuity portfolio. But according to the court documents, at the time BIFM was incorporated Okaile was neither a director nor shareholder of CMB.

He came to be the director of CMB in 2015 at the time when the portfolio management agreement had been terminated and also the portfolio management agreement was entered into between BIFM and CM Africa not CMB.

The now troubled CMB came under the spotlight in 2017 following damning allegations of mismanagement of public funds under its care. This was after it was contracted by the Botswana Public Officers Pension Fund (BPOPF) in 2014 to manage an initial P500 million investment mandate in private and unlisted equity.

The asset manager and the pension fund fell out in late 2017 due to the allegations of misappropriation of the funds.



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