After a marathon court case, the former bosses of Capital Management Botswana (CMB), Tim Marsland and Rupula Okaile have been acquitted and discharged of all charges that have been hanging over their heads since 2019.
Marsland, who has been held in prison since his many warrants of arrest were issued in late 2019 and Rapula, had become the focal points when the scandal of misappropriation of funds surfaced at BPOPF. At the time they were directors of CMB, an asset manager company that was engaged to manage BPOPF funds and they were accused of dipping their hands in the public funds, they were subsequently charged with various charges such as money laundering and obtaining by false pretences. However, on Monday the High Court set the pair free of all charges and set aside Marsland’s warrants of arrest on grounds that the State’s decision to charge and maintain prosecution against the duo was irrational and ought to be reviewed. This was after former CMB bosses filed a review application before court seeking the charges be reviewed and set aside on grounds that the decision to charge them by the State was malicious and made in bad faith.
According to the Justice Boipuso Tshweneyagae, there was no enough evidence to charge the pair and it was clear that as directors all they did was as per the contract between CMB and BPOPF. The judge explained that according to the records and evidence, it was clear that during their course of partnership arrangements, disputes arose resulting in acrimonious relationship and also charges of money laundering and obtaining by false pretences. “What ought to have been resolved by arbitration mechanism was turned into a criminal record. It is clear that the agreement provided for recourse between the parties in the event of a dispute was an arbitration. It is unfortunate that a purely contractual matter was turned into a criminal case,” she said.
Justice Tshweneyagae explained that according to the evidence that was consistent with the agreement, the parties discharged their obligations to a large extent therefore to bring the charges against them was irrational. The judge pointed out that having gone through the record, there was not even a single evidence pointing to money laundering activities between the parties as alleged by the State and that in terms of the agreement, the former bosses had the exclusive management of the funds invested in the partnership.
The acquittal of the former directors is one of the many victories surrounding the whole case. Just a while ago Okaile won his case after the High Court dropped his criminal charges.
He was together with CMB charged by the Directorate of Public Prosecutions (DPP) after Botswana Insurance Fund Managers (BIFM) reportedly made a police report accusing the pair of trying to defraud Botswana Life of its funds held at a certain First National Bank Botswana.
He also brought an application before the High Court for review of his charges and a permanent stay of prosecution after accusing the State of malicious prosecution. In the current case, Marsland brought the application as a first applicant seeking acquittal for him and Okaile. According to his founding affidavit, Marsland had said he was currently held in prison and that the decision to charge them was malicious, irrational and was made in bad faith, and therefore was liable to be set aside.
He explained that it was a shocking decision he has struggled to comprehend and make sense that his liberty had been curtailed for about two years for offences he has not committed and that his accusers could boldly go on record to assert his innocence but still muster the courage to charge and prosecute them for the offences they have not committed. “The matter started as a commercial contractual dispute between CMB and Botswana Public Officers Pension Fund. The dispute went all the way to the Court of Appeal and it ended up with Peter Collins being appointed statutory manager,” he said. He argued that the respondents have quite maliciously and unreasonably inflated and conflated a contractual dispute into a criminal matter when there was simply no evidence of criminal wrongdoing on their part.
Dipping into the monies they have been charged to have taken, Marsland said the monies they are said to have obtained by false pretences stood at P204m while the charge sheet maintained they obtained a total of P477m fraudulently and have laundered the same.
“Now the monies obtained by false pretences was P150m for Kawena Holdings, P50m from AGILE and some dividend from Wilderness Safari. The amount was P204m according to them,” he said. Giving details in one of the charges, Marsland said according to the charge sheet there was one of obtaining by false pretences as regards to P150m investments intended for Okavango Wilderness Safari, which he said was made maliciously and irrationally considering that the money was used to purchase shares from Safari, which is a public company.
Meanwhile, the one remaining case linked to the misappropriation of funds at BPOPF is the one of the former director and former Permanent Secretary to the President, Carter Morupisi and his wife, Pinny. Morupisi and his wife were also charged when the scandal broke as he was accused of using public funds for his own use. The case will be back in court on October 18.