DPP case is hearsay, scandalous and sensational – Seretse

Seretse, who was fingered as the 'mastermind' in the National Petroleum Fund (NPF) financial scandal before his acquittal and discharge, lost his assets around September 2021.

The properties were initially held under a restraining order obtained by the State before the conclusion of a forfeiture application that was launched in terms of the Proceeds, 27 seized assets, which includes high valued residential plots, top of the range motor vehicles with an estimated value of P82 million.

He wants the High Court forfeiture order set aside and he be given access to his assets. At the time he lost access to the assets, Justice Omphemetse Motumise of the Gaborone High Court had ruled that he should forfeit the properties as they were obtained through proceeds of crime.

However, appearing before the Court of Appeal on Monday this week, Seretse’s lawyer Kgosietsile Ngakaagae disputed judge Motumise’s judgment arguing that he should have not ruled in favour of the Directorate of Public Prosecutions (DPP) and was based on hearsay. “It remains that State’s case relied heavily on hearsay. The case is subject to fatal flaws that have remained unrectified until now. It is demonstrated by reference that documents relied upon by the State, supposedly constituting their primary evidence as regards to the transactions are not backed by any affidavit or any document from any bank from which they have been sourced,” he said.

Nature and character of DPP’s case

Ngakaagae explained that their case showed that the State’s case was riddled with hearsay evidence pointing out that no matter how many times repeated, sensationalised it cannot be a fact, cannot become evidence and therefore, cannot form a basis of a credible case.

Ngakaagae submitted that the least that the State could have done, could have been to ensure that the transactions are properly backed up by confirmatory and verifying affidavit from sources as to both authenticity and substance. He argued that the affidavits would be deposed to by people with the evidential competency to vouch for their veracity, for example, the custodians.

“It is a matter for the record that, that was not done. Whilst that may have been pardonable at the restraining order phase, where it has been held, the standard is low and one of reasonable suspicion, it would make no legal sense to suggest that that same low standard could apply at the forfeiture stage where constitutional rights are directly in issue,” he emphasised. According to Ngakaagae, the substantive forfeiture application stage is a stage where all the cardinal and fundamental principles of evidence, without which there can be no justice, must be observed and where applicants are held to full standards of evidential proof.

He explained that in terms of Section 20, of the Evidence In Civil Proceedings Act, "No evidence which is of the nature of hearsay evidence shall be admissible in any case in which such evidence would be inadmissible in any similar case depending in the Supreme Court of Judicature in England." The lawyer said the above provision of statute applied to Seretse’s case; same being a civil case and that there has been no suggestion by the State that the present case is subject to any of the exceptions available at the common law or as otherwise envisaged by the statute. “The general rule, which finds emphatic expression in the case instant, is that, hearsay evidence is admissible. The Proceeds and Instruments of Crime Act does not provide for derogations from the hearsay rule in so far as substantive asset forfeiture cases are concerned. Even supposing the present proceedings could be said to be anything other than civil proceedings - which argument would be stale - same would be inadmissible by reference to Section 224 of the Criminal Procedure and Evidence Act,” he contended.

Ngakaagae’s argument is further that in the court a quo, the lawyer for the State had sought to justify the hearsay nature of the evidence on the basis that same entered the record through an affidavit deposed to by a "prescribed investigator". He said it appeared to be the thinking of State that because the hearsay evidence was analysed by someone who professes and might in fact be having a professional qualification, same has by that reason ceased to be hearsay.

“It is submitted that hearsay evidence remains as such and is inadmissible, regardless of the personal merits or office of the individual who avers it,” Ngakaagae said.

Nature of forfeiture application

According to Ngakaagae when one deals with forfeiture application, two questions should be observed and answered before making a final judgment. He explained that the two basic questions that must be answered are whether the existence of the crime has been proved to the relevant civil standard and whether there exists a connection between the crime thereof and the proceeds sought to be forfeited. Ngakaagae pointed out that the questions must be considered independently of each other and if, for example, there exists no connection between the properties and a proved crime, an application for forfeiture ought to be denied. “The enquiry is not about the commission of a crime but proof of assets as being proceeds of crime. The connection must be factual and cannot be assumed and must be proved by admissible evidence to exist. It follows that if there is no proof of the existence of a crime (as opposed to a conviction) there can be no talk about proceeds of crime,” he said.

The lawyer argued that the crime is what gives the assets the quality and identity that qualifies them for forfeiture and that forfeiture may also, of course, be based on the connection of the assets to crime-related activities. He emphasised that from a literal reading of the provision, a double connection would be necessary and that firstly, that the activities are related to a crime and secondly that the properties are related to such activities. Ngakaagae said in the Seretse’s case, there has not been averred that the properties fall within the latter category of forfeitable assets and as such the present enquiry solely engaged with the assets as being proceeds of crime.

“It follows equally that if the court is of the view that there exists no connection between the assets and the alleged crimes then forfeiture would not be possible. Whether or not a crime has been proved to the required standard becomes irrelevant,” he said. He submitted that not only have the alleged crimes not been proved to the required stands but that no evidential connection has been proven between the purported crimes and the assets noting that the presence or absence of such an evidential connection was decisive. Ngakaagae specifically contended that even if the court was to find, as the court a quo did, that crimes were committed, there is no evidential connection between the said crimes and the proceeds and that an attempt to create such a nexus was based on inadmissible hearsay. “It is submitted that had the learned judge taken this fact into cognisance, he would not have ordered forfeiture even if he could have surmised that the existence of crimes was proved to the required degree. In these submissions we demonstrate why they maintain that the requisite connection does not exist and why the evidence upon which it is predicated is inadmissible hearsay.

Grounds of appeal

In the grounds of appeal, Ngakaagae said it was wrong for the judge to conclude that the properties were proceeds of crime. “The learned judge erred in concluding that the properties had been purchased with proceeds of crime, when there was no evidence whatsoever, linking them to such,” reads the court papers. The assets in question range from various residential properties, luxury vehicles, furniture, jewellery, agricultural and gym equipment, which he contends that specific assets namely Weylandts furniture and fittings, gym equipment, and residential property in Gaborone West have been unjustly attributed to being the proceeds of criminal activity without evidence. He explained that the judge was wrong in concluding a plot in Gaborone West was bought for Kenneth Kerekang and his wife when there was no admissible evidence whatsoever to that effect. More on grounds of appeal, Ngakaagae argued that the judge was wrong in concluding that him, Kerekang and Basis Point connived and conspired fraudulently to divert money from the NPF. “He failed in not giving due weight to the fact that the evidence by the prescribed investigator as regards to assets and their connection with allegedly diverted amounts was inadmissible hearsay,” further reads the papers. He argued that it was surprising that the judge did not consider that the prosecution had on previous occasion given a contradictory version as to how the properties subjected to forfeiture were obtained and did not resolve disputes of fact arising from pleadings in favour of them but resolving the same for the State. The appeal clearly makes assertions of favouristim, insisting that arguments and evidence provided by the prosecution were given preferential treatment despite lacking substantial weight. “The judge erred in concluding that the consultancy contract was bogus when such indicated a dispute of fact that could only be resolved by oral evidence. More on judge Motumisi’s judgment, Ngakaagae said he erred in concluding that the elements of the alleged crime outlined in the State’s case had been proved to the required standards,” he said. He further said it was not their duty and responsibility for internal compliance with government procurement as said by the judge. That it was wrong for the judge to rely on the unsigned minutes of NPF committee as the reflection of what really transpired during such meeting and in expecting them, who were not responsible for recording minutes to produce copies of minutes contracting the same. “The judge was wrong in relying upon the evidence of DIS staff on procedures regarding correspondence, when no policy or guideline to that effect was provided to back up the claim or ascertain that it was, when the DIS were a conflicted entity,” he said. He also said the judge was not right in treating the properties individually for purposes of determining whether such were in fact proceeds of crime and whether the specific evidence relating to such was in fact admissible.

What Justice Motumise’s judgment detailed

Motumise’s judgment said the court found that the alleged fraudulent actions of Seretse and the former director of the Department of Energy in the then Ministry of Minerals and Water Resources, Kerekang cheated the public revenue. He explained that the duo acted fraudulently in diverting funds from the NPF for private gain instead of purchasing oil stocks for the Botswana Oil, according to the avowed purpose for which the funds were assigned. “The confiscation offence of money laundering was committed contrary to Section 47 of PICA by Seretse and Basis Points by using the NPF funds to purchase the respondents for themselves and related companies and individuals,” reads Motumise’s judgement in part.

Forfeiture assets

Some of the assets that were to be released included a Maserati Ghilibi, two Mercedes Benz sedans, a Lexus LX, a Toyota Rav4, a Ford Ranger, a Volvo XC 90, a Land-cruiser 4.5, a Toyota Hilux, a Ford Fiesta, a Subaru station wagon, a VW Polo and a Rolls Royce Phantom, Weylands Furniture and fittings, Lease Area 181-KO, Plot No. 4890 Extension11, Plot No. 2565 Thema1, Lobatse, Plot No. 16403, Gaborone West, Rolex GMT Master 1 Watch, 14 pieces of Gym Equipment, Farm & Gardening Equipment 9pieces, 2× Farmtrack 6030 2WD & 2x Diclar Trailer, 28.0 KVA Ultra Silent Generator (380v), 7piece lawn mower equipment, VW Polo B938 AZB and many others. Meanwhile the case was before Justices Johan Froneman, Singh Lakhvinder Walia and Edwin Cameron. Judgment has been reserved for February 23.