02 Dec 2021

The state has succeeded in its endeavour to overturn a court decision to free Timothy Marsland and Rapula Okaile from the charge of obtaining by false pretence and money laundering.

The state victory over the two was handed down by Justice Isaac Lesetedi of Court of Appeal (CoA), who explained that the decision was unanimous, on Wednesday.

He said the appeal by the director of public prosecutions and attorney general to set aside the High Court decision succeeded with costs.

Justice Lesetedi said the order of the lower court was set aside and replaced with an order that the application was dismissed with costs.

Further, Justice Lesetedi said he did not intend to deal with all errors in the judgment of the High Court, save to point out that it did not reflect the law in a number of aspects.

“It has to be noted that although the appeal was limited to the points considered herein, the proceedings in the court a quo were best beset by a number of errors,” he said.

Justice Lesetedi also noted that the respondent attorney had made concession that acquitting and discharging the respondents was improper.

Further, Justice Lesetedi said both Okaile and Marsland had not been brought before the trail court on the charges, thus had not pleaded.

“They could thus not be acquitted of charges they had not been called upon to answer for,” Justice Lesetedi said.

He described as a principled point the decision by the respondent attorney to concede that the test applied by the High Court in determining the application for reviewing the director of public prosecution decision to prosecute was not a correct one.

Justice Lesetedi said the respondent attorney position was predicated on an acceptance that the criminal law of Botswana was largely based on English law, thus courts in Botswana were more likely to be persuaded by the position reflected in that jurisprudence or in other common law jurisdiction.

The Court of Appeal also rejected the respondent’s version that DPP acted in bad faith when charging the two, saying the DPP decided at what level a charge was to be brought or an indictment lodged.

The High Court had in its judgment said the decision of the DPP to charge the respondents with various charges of money laundering and obtaining by false pretence is reviewed and set aside, and consequently discharged and acquitted Oakile and Marsaland of all charges.

 The High Court had further cancelled and set aside warrant of arrest issued against Marsland, who was in South Africa awaiting extradition to Botswana.

The state had approached the CoA pleading for stay of execution of the High Court judgment, which freed Mr Oakile and Mr Marsland from an alleged fraud involving part of the P477 million from Botswana Public Officers Pension Fund.

The duo were directors of Capital Management Botswana and held 75 per cent and 25 per cent of its shareholding respectively.

The matter was before Justices Lesetedi, Leatile Dambe, Monametsi Gaongalelwe and Singh Walia. Ends