02 May 2022

A panel of Court of Appeal has dismissed an appeal by the Directorate of Public Prosecutions (DPP) to have about P69.7 million belonging to local businessman Mr Bakang Seretse and his companies forfeited to the state.

The public prosecution had appealed to the apex court to overturn a judgment of High Court which had ruled against the amount forfeited to the states. 

On Friday a panel of three judges, comprising Justices Fritz Brand, Abednego Tafa and Stephen Gaongalelwe upheld the High Court ruling.

The panel stated that the appellant had failed to establish on a balance of probabilities that the properties sought to be forfeited were derived from the proceeds of serious criminal activities.

The judges said the appellant case was that the inference must be drawn from flagrant way in which the former director of the department of energy, Mr Kenneth Kerekang disregarded procedures established by law and by the practice of the National Petroleum Fund (NPF).

According to the appellant, the case was evidenced by Mr Kerekang when he single-handedly authorised a payment of P230 million from NPF fund, for a purpose other than those which it has been created for.

And such position, according to the panel was not justified when considering background of other facts.

On the establishment of facts, the court said Mr Kerekang authorised the payment at the request of the director of intelligence security services, for the furtherance of a project which had previously been funded by the NPF.

Further, it said it was apparent on the appellant’s own case that the minister of energy also thought that the disbursement was legitimate. 

“The permanent secretary, the chair of the NPF, who clearly seeks to pass the buck to Mr Kerekang, also did not object to the disbursement at the time”.

The court said Mr Kerekang also authorised the variation of use which led to the acquisition of military equipment and had also tried to retract the said variations.

“Moreover, he did so, on his own version because he realised that he had exceeded the scope of his authority , not because he thought the disbursement was illegitimate or that it would be against public good”.

The court stated that there was no evidence that Mr Kerekang was aware of the fact that the DIS had used the disbursement for a purpose other than the construction of petroleum facilities, for which it was requested from him by the security organ.

 CoA said the other side of the picture which appeared from the papers before the court, suggested that even some of the most senior members of the executive thought that the acquisition of military equipment for anti-poaching was for the public good. 

As such CoA said the appellant appeal had failed. BOPA