19 Apr 2022

There is enough evidence to sustain claims that the over P69 million frozen by the state in Bakang Seretse’s bank account is proceeds of crime, the directorate on Public Prosecutions has argued before the Court of Appeal (CoA) that.

The DPP, represented by attorneys Busang Manewe, Basimane Bogopa and Itumeleng Mothibamele told a CoA bench in Gaborone recently that the High Court erred in its determination that there was no evidence that Seretse and his companies were involved in any form of crime alleged to be related to the origins of the funds in question which are linked to the P230 million National Petroleum Fund (NPF) case.

Mr Manewe said the DPP had to prove whether the property was to be excluded from being linked with criminality. He said section 44 of the Proceeds and Instruments of Crime Act (PICA) provided for circumstances where property could be excluded from forfeiture, as long as the owner could prove why the property could not be the subject of restraint and consequently forfeiture.

“Based on the circumstances of the case, the question is whether we can say the applicants were entirely innocent. Affidavits provided by among others, the then Ministry of Investment, Trade and Industry, Sadique Kebonang, the then Ministry’s Acting Permanent Secretary, Obolokile Obakeng, the then Director of the Department of Energy Affairs, Kerekang and former Director of the Directorate of Intelligence and Security Services, Colonel Isaac Kgosi have on the balance of probabilities proven that an offence was committed, being an offence of breach of public trust,” he said.

 Mr Manewe said there was evidence that Kerekang was a public official who had acted against the conduct of his office, causing a serious departure from public trust by using his office for a purpose other than public good.

He said the minister should have appointed a management committee charged with the responsibility to invest and disburse funds. He said from the evidence provided, procedure was not followed in disbursing the NPF as it showed that it was spent outside the set perimeters for the benefit of individuals.

“Authority to release the funds lies with the management committee, not with Kerekang and Kebonang. As long as the funds were disbursed without following the procedure, it then becomes proceeds of crime,” said Mr Manewe.

He said as per Obakeng’s affidavit, he was summoned to a meeting in Kebonang’s office sometime in October 2017,  in the presence of Rose Seretse (then DCEC Director), Kerekang and Sethebe (the then Director of Financial Intelligence Agency), where he was informed by Kebonang of the intention to transfer P250 million to DIS.

To his shock, Mr Manewe said Obakeng had stated that he learnt of the said amount for the first time at that meeting even though as acting PS, he was the accounting officer and was supposed to be the one informing the minister about the said request for funds.

Mr Manewe said following the meeting, Obakeng received a call from Kebonang instructing him to comply with the DIS letter seeking authority for a variation of the P250 million as there was a serious challenge affecting the country’s fuel reserves.

Mr Manewe added that the DPP had presented evidence indicating that Kebonang had personally benefited from the NPF. He said an amount of P7 million was transferred from Basis Points, one of the companies under Seretse’s directorship to purchase some property for Kebonang. Mr Manewe said since the funds were diverted to serve individual interests other than those of the NPF, Seretse was aware and was part of the criminal activities.

He said the NPF money was disbursed in staggered form by Kgori Capital citing that P42 million was disbursed to Basis Point as upfront fees for managing the fund which was charged at 20 per cent of the P250 million while P118 million was transferred to Israel on instruction by DIS. He said the frozen P67 million should be transferred back to the NPF account. “I submit that we have comprehensively dealt with the case and our appeal must succeed. I believe we have established thorough evidence that Seretse ought to have known the illegalities that Kerekang and Kebonang did in disbursing the funds,” said Mr Manewe.

Meanwhile, the respondent’s lawyer, Mr Kgosietsile Ngakayagae argued that what Kerekang had done through a correspondence directing that money should be diverted to DIS was validated by the PS and Minister. “I will not say what Kerekang did was a deviation from procedure. We must not run the risk of individualising the wrong, the whole leadership of the ministry is to blame,” he said.

He further argued that the said transfer of funds amounting to P7 million which was used to purchase property for Kebonang would not in any way be linked to the funds in question as it preceded the NPF deal. He said the purported criminality was done internally by government officials.

He wanted to establish how his client was expected to know what has happening internally and how Kebonang had disbursed funds without the authority of cabinet.

Mr Ngakayagae said his client was still contracted to NPF and that the P69 million frozen in his accounts remained the property of government and it would remain in his possession until he was told what to do with the funds.

Mr Ngakayagae said it was unfortunate that the P118 million that was diverted to the DIS was never questioned though it was not used for NPF purposes. He said security equipment such as drones, fire arms including training for security agents were acquired through the funds and to deal with other emanating threats such as terrorism and poaching.

The bench made of Judge Fretz Brand, Judge Monametsi Gaongalelwe and Judge Abednego Tafa will deliver the ruling on the civil application on April 29. ENDs