03 Nov 2021

The respondent attorney in the Capital Management Botswana (CMB) fraud case involving Mr Rapula Okaile and Mr Timothy Marsland has conceded before the Court of Appeal (CoA) that the High Court judgment which freed the duo was erroneous. 

Advocate Mpho Garebatho told the CoA bench on Tuesday that he does not oppose the state application for the judgment on the former directors of CMB to be set aside. 

The state had approached the CoA pleading that the acquittal as well as the test used to review the case of the duo were wrong. Advocate Garebatho told the court that although there was agreement between the parties, they however disagree with the Directorate on Public Prosecution (DPP) for having charged his clients on transactions, which had no basis for criminality, saying it amounted to abuse of the process. 

The respondent attorney noted that having multiple charges would result in his clients failing to adequately defend themselves, as they would need bigger defence teams, adding that the matter was too technical. 

He further told the CoA that the DPP charged his clients even on transactions where the investigating officer had indicated ‘insufficient evidence’ to motivate for a charge. 

The applicant attorney, Mr Mboki Chilisa however, accused the respondent attorney of misrepresenting statements of the investigating officer, which did not help his case. 

He said the officer had only indicated local transactions, which could have been proceeds of crime. 

Furthermore, Mr Chilisa asked the court to determine, if the lower court had abused processes, and if so, the applicant be awarded the remedy available, which would be for the matter to be tried before the court. 

The outgoing Judge President of the Court of Appeal, Justice Ian Kirby informed the parties that they would be advised on the judgment date, saying the matter needed time for consideration. 

Other members of the bench included: Justices Isaac Lesetedi, Leatile Dambe, Monametsi Gaongalelwe and Singh Walia. 

The state had approached the CoA pleading for stay of execution of the High Court judgment, which effectively freed Mr Okaile and Mr Marsland from an alleged fraud involving P477m or part thereof being funds for the Botswana Public Officers Pension Fund (BPOPF). ends