27 Feb 2024

Businessman, Mr Bakang Seretse on Friday lost his appeal against the State on forfeiture of his assets that High Court  Judge, Justice Omphemetse Motumise had ruled were proceeds of crime.

The State through the Directorate of Public Prosecutions (DPP) was granted civil forfeiture of the 26 assets, which included properties and a string of luxury vehicles, by Justice Motumise in 2021.

The background of the matter is that one of Mr Seretse’s companies, Basis Point Capital, was engaged to provide technical advisory services to the National Petroleum Fund (NPF) in its energy sector projects.

Court documents indicated that part of the brief was for the company to also administer the Fund’s assets and manage its finances, a task that Basis Pont Capital further sub contracted to Afena Capital Botswana, later renamed Kgori Capital, which is also one of Mr Seretse’s companies.

Documents produced before court further stated that at the instruction of the then Director of the Department of Energy, Mr Kenneth Kerekang, a bank account was opened by Afena Capital Botswana with one of the banks in the name of NPF, with instruction to transfer P60 million for the procurement of government strategic oil stock through Oil Botswana. This was despite the Fund already having two other accounts with two separate banks.

Evidence before court indicated that afterwards, there was transfer of the funds from one of the existing NPF counts into the new account, where it was eventually transferred to that of Basis Point.

According to the judgment of Justice Motumise at the lower court, soon afterwards there was a ‘a near frenzy of looting’ which resulted in ‘fabulous fortune and wealth for those who received the funds.’ Justice Motumise in his judgment described the deed as ‘a spending spree that had the intention to exhaust and dissipate the funds,’

Seretse is then accused of having made a series of purchases as well as acquiring a large number of properties, including luxury cars, the very property that the state moved to attach.

In its argument, the DPP argued that Mr Kerekang acted against what was agreed in the meeting as there was never any resolution to open a new bank account for the NPF, nor was there any resolution to transfer funds into it, and ultimately to that of Basis Pont Capital.

Justice Motumise therefore ruled that as such, the proceeding actions were fraudulent, and so were all the associated proceeds, and ruled that they be attached. In his appeal, Mr Seretse indicated evidence by the DPP was inadmissible as it was hearsay.

He argued that the High Court should have dealt with the property individually rather than clustering them together as all proceeds of crime. He maintained that the assets were gained through lawfully acquired revenue that Basis Points had duly earned.

The Court of Appeal however, ruled that the DPP had assembled a flood of evidence in the trail of bank statements, the minutes of the initial meeting by the ministry officials, the correspondence of Mr Kerekang which it ruled he sent out with fraudulent instructions, as well as affidavits of bank officials who saw to the opening of the account.

Further, the Court of Appeal also agreed with the DPP that Mr Seretse’s assertions that he had a consultancy contract with the Directorate of Intelligence and Security Services, which he said is the one that enriched him was bogus.

The Court of Appeal also indicated that Mr Seretse never raised the issue of individualisation of the assets in question during trial, and therefore dismissed the appeal with costs. BOPA