23 May 2018

Scores of people who thronged the Gaborone South Regional Magistrate’s Court on May 22 left disappointed when the long awaited ruling on variation of the bail conditions for the accused in the P250 million National Petroleum Fund (NPF) case flopped.

Regional magistrate, Mr Chris Gabanagae told the court that he was incapacitated to deliver the ruling because he had just received some additional papers filed by one of the defence lawyers, Mr Sikhumbu Masuku.

Magistrate Gabanagae noted that there was no time for him to peruse the contents of the filed documents so that he could incorporate them into his ruling. He also expressed worry over either late coming or the non appearance of attorney Masuku, adding that next time the court would proceed in his absence.

Mr Masuku, who represents the third accused, was not present and when his clients was asked where he was, she told the court that he might be on his way to court, a response which magistrate Gabanagae recorded.

Late in March, Magistrate Gabanagae told the parties involved in the case that his diary was full and would be engaged the whole of April, as he would be undertaking official trips around his jurisdiction with the Chief Justice, and therefore would only be available late May for bail ruling. The defence attorneys had prayed that the ruling be scheduled to a nearer date.

He noted that although he had listened to both parties and appreciated their submissions for and against the relaxing of bail conditions, there was no how he could speedily deliver the ruling owing to his busy schedule. But this time around one of the lawyers caused the ruling to be delivered on June 8, 2018.

In the meantime, the case has revealed that some top officials in government were also involved, a development which has caused one of the defence attorneys, Mr Kgosietsile Ngakaagae to challenge the decision of the prosecuting authority, Directorate on Public Prosecutions (DPP) over its choice to charge suspects selectively.

In the last sitting where Bakang Seretse, his company Khulaco Ltd, Botho Leburu and Kenneth Kerekang came with the hope that they would be given an opportunity to temporarily get their passports to cross the border especially to South Africa where they have business interests, their hope was dashed by led investigator from the Directorate on Corruption and Economic Crime (DCEC), Mr Andria German who said it was early to submit to their request.

In the meantime, attorney Ngakaagae told the court in the March 28, 2018 sitting that the investigator had failed to take the court into confidence and state comprehensive factual reasons why bail could not be relaxed, but instead chose to state that he had some fears, a condition which the court could not rely on when making a determination.

He accused the prosecution of holding his clients at ransom while other people who could be charged for the same offence were moving about as they pleased with diplomatic passports. “Why is it that the investigators are very much reluctant to charge them,” he said.

Attorney Ngakaagae further said while he was alive to the fact that plea could be reserved it was unnecessarily taking too long, a development which he said was abuse of power meant to make his clients suffer. He said in the next court sitting they would be prepared to take a plea and proceed with setting trial dates. He also urged the DCEC to return vehicles which they unlawfully seized to their owners with immediate effect. 

For his part, attorney Masuku for Leburu said it was mischievous for the prosecution to state that it does not link her to any property or money in South Africa, the UK and Italy though it was reluctant to relax her bail condition. He said insinuations made by the investigation that she may aid dissipation or removing of asserts outside the country were baseless as they were not supported by any factual reason.

Attorney Masuku said bail was not a legislative instrument designed to punish an accused person, but to ensure that an accused would attend to all court sessions as and when required. He urged the court to dismiss the prosecution argument and grant them their wish.

According to the particulars of the offence, the accused persons, Seretse, Khulaco (Pty) Ltd, herein represented by Seretse, Leburu and Kerekang are said to have on a date unknown to the prosecution, but between September 5, 2017 and November 27, 2017 in Gaborone acting jointly and with common purpose received, possessed, disguised and disposed P250 million knowing or suspecting or having reasonable grounds to know or suspect that the money was derived or realised in whole or in part directly or indirectly from the commission of a confiscation offence, to wit, theft.

Seretse is managing director of Khulaco (Pty) Ltd while Leburu is director of Khulaco. On the other hand Kerekang is executive director of BERA.

The accused are on a cash bail of P30 000 each with each producing two sureties binding themselves with P10 000 each. They report every fortnight at Gaborone West Police Station and have also surrendered their passports to the investigating officer. The prosecution is made up of Messrs Wesson Manchwe, Tyron Mokgathong and Pascal Mandu from the Directorate of Public Prosecutions (DPP). ENDS