Justice Godfrey Radijeng of Gaborone High Court has ordered government to return the sum of P82 million and other assets belonging to embattled businessman Bakang Seretse.
“Given the scope of restraint defined in PICA, the property is restrained for a particular purpose and statute defines the timelines within which secondary activity following the restraint must be commenced,” he said.
Justice Radijeng said it could not be conceived that the time frame for instituting the forfeiture application could be viewed as a condition that could be varied by a court given its legislative prescription.
He pointed out that once the forfeiture proceedings are commenced, the timeline must be the primary question to assess and not to request for the amount to remain restrained pending the conclusion of investigations that are uncertain as to time to conclude.
“To grant the state’s prayer on this point would defeat the objects of PICA as to the purpose of restraint and timelines for commencement of the forfeiture process,” he said.
Radijeng pointed out that if the amount in question was part of the disbursement traceable to the NPF as alleged, the state could establish that the initial amount was derived directly or indirectly from the serious crime-related activity thereby being no need to park the amount through restraint in perpetuity.
In his words, the judge said: “The respondents' submission persuades me as PICA is instructive that if the property is found to fit the threshold, whether in whole or part, then it is a serious crime-related activity. The amount in question on the facts is a part of the amount allegedly disbursed from the NPF”.
Radijeng explained that there was nothing on the table from the prosecution’s submission to persuade that the respondents had failed to demonstrate how they accessed the money and who authorised it, noting that the onus remained with the State to make its case on the facts and adduce evidence to support its conclusions.
He said the respondents, as interested parties did not have the onus unless an evidential onus was required of them, which he said had not risen on the facts.
The judge went on to say that the state had not placed evidence before court that established that Seretse was present when the decision approving the disbursement or altering the use of the funds was made.
He explained that he was persuaded by the affidavit of Seretse when he said that Kenneth Kereng as a senior government official at the level of Director in the Department of Energy had the authority to represent and bind it.
“I find it reasonable in the facts set out that Bakang Seretse and any other person implicated as having committed some wrong would not, knowing the existence of the technical advisory contract and even on the standalone authority of the Director, not to question the authority or status of a person who transacted on behalf of government,” he said.
The state’s case
The state’s case asserts it alleged that there was money missing from the NPF. It then sets out that there was a departure in the administration and expenditure of the NPF that was not authorised by the Minister of Finance and Development Planning.
The state then alleged that amounts of funds had been disbursed in an irregular manner or as illegal transactions and subsequently Seretse, his companies and other accused persons were fingered in the illegality of transacting the funds.
In the process, the state said there was sufficient evidence supporting that the funds and properties belonging to Seretse were proceeds of crime-related activities that constituted forfeiture.
Seretse and others’ case
Seretse, who is a shareholder in companies including Raging Bull, Khulaco and M&B Properties, which were subject to the forfeiture application opposing the forfeiture on grounds that the companies earned their money lawfully and could not be faulted.
He had deposed an affidavit explaining that if there were internal government processes that were breached they could not be blamed on him and the other accused.
Seretse said amounts mentioned by the state to have been wired to the Israeli company were at the instructions of the Directorate of Intelligence and Security (DIS) as it appears in the letter by Isaac Kgosi filed in the restraint proceedings.
“If the processes of government were flouted, it is not the concern of the parties, nor this be classified as a crime. There is no affidavit from the minister that he did not approve of the disbursement of the NPF fund. The state does not indicate any wrongdoing on our part, as we were not privy to the internal operations or doings of the government entities noted,” he said.
Seretse, in his documents, outlined that Khulaco disbursed money as a fund manager that Basis Points earned its keep arising from contractual payments and that he was nowhere in the government procurement procedures to influence any decision of state.
He also denied the allegation of money laundering.
Ernest Mosate represented the state while Kgosietsile Ngakaagae represented Seretse and others.