Three High Court Judges, Justices Chris Gabanagae, Abednego Tafa and Matlhogonolo Phuthego say there was no evidence whatsoever used by the Directorate of Public Prosecutions (DPP) to prosecute the Kebonang twin brothers on criminal charges including money laundering.
The Judges on Tuesday reviewed and set aside the decision by the DPP to prosecute Sadique and Zein as there was no clear evidence as to why the two were charged.
According to the 146-page judgement, delivered by Justice Phuthego and concurred by Justices Tafa and Gabanagae, it was clear that the DPP did not read the docket before charging the pair.
“Nowhere in the affidavits the director avers that he had read the docket prior to charging the pair. All he says is that the charging had been preceded by briefing to him on available evidence by his juniors who had perused the evidence from investigating officers,” he said.
Phuthego also said it was clear that there was no evidence relied on by the State as again there was nowhere in their papers where they pointed to any evidence that suggested a prima facie case against the applicants on each of the charges as the one that led to the director preferring the charges against the brothers.
He said the DPP was all over making general and unsubstantiated statements while it did not address the merits of the application at all.
Justice Phuthego pointed out that the prosecution only covered the law generally on, for example on condonation of late filling of the review application, money laundering and institution of criminal proceedings by prosecuting authorities without stating how the cases they have cited in support of their position were applicable to the instant review application.
“For the prosecution to be lawfully instituted there had to be direct or indirect prima facie evidence that the accused person had knowingly engaged in a transaction which wholly or partly represented the proceeds of any crime or that he knew, suspected or had reasonable ground of suspecting that the property was derived or realised in whole or in part from a confiscation offence,” he said.
He explained that the Rules of the High Court required the government to avail the Registrar only the material that the DPP had relied upon in charging the twins.
On the contrary, he said what happened in the case was that the State filed with the Registrar and served on the brothers lever arch files with the material that appears to had been unearthed by DCEC during its investigation without pinpointing to the documents or witnesses statements that had motivated the State to lay charges against the applicants
“The State struggled to direct the Court to the link between the charges against the applicants and the material in the lever arch files constituting the review record. This was not surprising because nowhere in the answering affidavits and written heads of arguments does the State point to such link,” he said.
The Judge further explained the State alleged in its affidavits that the Zein was involved in the opening of a bank account by Basis Points in July 2016 at Capital Bank which was allegedly used by the company to launder the NPF funds held at Ban Gaborone in the sum of P60 million.
However, he noted that the State did not point to anything that supported their allegations while they also alleged that the brothers allowed a payment of the sum of P42 million commission to Khulaco Company, but there was no evidence that backs that averment.
Further, the Judge said although in respect of the P60 million NPF funds, the director specifically alleged that Zein signed a resolution on July 19, 2016 which enabled Basis Points to open a bank account at Capital Bank to help in facilitating the misappropriation of the NPF funds which were held at Bank Gaborone as a fact in the resolution Zein’s name does not appear.
“It is not disputed by the State that the brothers were neither shareholders, directors, employees of the companies allegedly used to siphon NPF funds and then transferred them to other bank accounts for the benefits of the applicants, nor were the brothers signatories to those companies’ bank accounts. There is no evidence pointed to by the State that suggests the brothers knew or had reasonable grounds to know that the funds were proceeds of crime or criminal activities,” he said.
The Judge also said the brothers explained fully about the monies and their transfer and said in his view the explanation given was reasonably possibly true.
In end, the Judge said in totality they did not find anything in the review record nor did the State show any pieces of evidence to that there was a reasonable and probable cause for the director of DPP to prefer charges against the brothers.
Attorney Unoda Mack represented the applicants while Mpho Letsoalo appeared for the State.