A panel of five judges of the Court of Appeal has set aside a High Court decision to acquit Timothy Marsland and Rapula Okaile after concluding that the ruling to discharge and acquit of money laundering and obtaining under false pretenses was wrong. Ruling in favour of the Directorate of Public Prosecutions (DPP) and the Attorney General, the judges said the DPP was within its rights to charge the two.
Reading out the decision of the Court of Appeal, Justice Isaac Lesetedi said because of his or her constitutional role, legal expertise and experience, the Director of Public Prosecutions (DPP) acts as an officer of justice whose interest is not to initiate a prosecution willy-nilly or to obtain a conviction at all costs.
“He or she is an officer of the state (and) a guardian of justice to ensure that prosecutions are only initiated where there is probable cause for believing that the suspect has committed an offence,” the judge intoned. To make the appointment, he added, such a person must be qualified to be appointed a Judge of the High Court, reflecting the level of integrity and competence with which the constitution requires of the office of the DPP. “It is the duty of the executive not only to investigate the commission of crimes but also to bring the suspected offenders before the courts to be prosecuted for such offences,” Justice Lesetedi emphasised.
It is the role of the courts to determine whether or not such criminal charges have been proved. In that exercise, the hierarchy of the courts is generally to be observed with the DPP to decide at which level a charge is to be brought or an indictment lodged.
Judge Lesetedi said the responsibility of determining whether or not to institute criminal proceedings ultimately lies with the DPP, who is a member of the executive branch of government and a legally qualified and experienced officer whose qualification for office is at the same level as that of a judge of the High Court.
He pointed out that the constitution gives the DPP wide discretionary powers of criminal prosecution. Such a decision may involve policy consideration that the courts are ill equipped to adjudicate on. “It is entirely a matter of the law officers of the Crown to determine the form of prosecution, and for the court to determine whether the charge made had been supported,” Lesetedi said, adding that the DPP is legally trained senior officer with a team of other legal officers around him supported by the criminal investigative officers of government. “They are better resourced than the courts to gather evidence and determine whether there is a probable cause to believe that the person to be charged has committed offence,” he noted.
Because of the separation of powers between the judiciary and the executive and the wide discretionary powers on the public prosecutor in deciding whether or not to charge and on what counts, it is prudent for the courts not to interfere with the exercise of such discretion when the courts’ supervision and oversight as well as other remedies will ordinarily be available for an accused at trial, the judge said.
He pointed out that the situation may be different where the discretion challenged is for non-prosecution or discontinuance of a prosecution. “But that is not the challenge with which these proceedings are concerned,” he averred. “I am fortified that the court a quo erred in applying the ordinary rules of judicial review in the challenge to the DPP’s decision to prefer to charge against respondents,” the Court of Appeal concluded.
The matter goes back to 2018 when Marsland was arrested at OR Tambo International Airport in South Africa on an Interpol red alert issued at the instance of three warrants of arrest from the DPP in Botswana. The warrants were issued on grounds of suspicion that he had committed offences of obtaining by false pretenses and of money laundering on diverse dates.
He was held in custody pending extradition to Botswana to face several criminal charges for those offences alongside Okaile of Capital Management Botswana that the two controlled. However, Marsland has resisted his extradition and the efforts are still pending.
Marsland and Okaile brought an application before the High Court for an order seeking the setting aside of a decision by the DPP to charge them on various counts of money laundering and obtaining by false pretence. The origin of the charges was a partnership agreement between CMB and Pension Fund Manager, Botswana Public Officers Pension Fund Limited (BPOPF). Agreement was entered into in 2014.
BPOPF was to contribute 99 percent of the funds to be invested and CMB the remaining 1 percent. The funds were to be invested in an identified private equity. CMB was the general partner whose role was to manage and invest on behalf of BPOPF. The funds were to be invested through Botswana Opportunities Partnership (BOP) with BPOPF as a limited partner. Funds were injected in tranches into a BOP account at the filing of a requisition from CMB for specific investments. CMB was controlled by Marsland and Okaile, who were its directors with 75 percent and 25 percent shareholding respectively.
P477 million was paid into the BOP account for specified investment undertakings. It was submitted before the High Court that funds from the fund were not utilised for their intended purpose but were fraudulently diverted and paid into entities owned by Marsland and Okaile and other third parties with links to them.
The DPP stressed that there has been no meaningful attempt by the respondents to explain these multiple diversions of such massive funds. The dubious diversions constituted the foundation of the criminal charges. After a complaint that CMB had fraudulently diverted funds and squandered some, a criminal investigation was launched by DCEC which led to warrants of arrest, the basis of which were successfully challenged by Marsland. The High Court declared that the decision by the DPP to charge Okaile and Marsland was irrational, unlawful, malicious and illegal, setting aside the charges and acquitting the two.
However, an appeal was thereafter launched arguing that the High Court had erred but it was subsequently challenged by Marsland and Okaile. They argued with fervor that the appeal was incompetent in that the review application in the court a quo having been a criminal matter, an appeal could only be launched with permission of the court under Section 12(1) of the Court of Appeal Act.
The point was contested strongly by the DPP who argued that the review application was a civil matter for which an appeal lay as of right to the court. The question of whether or not the appeal against the decision of the court is one of right of appeal in a civil matter or one which required leave of the court was an important one as it determined the very validity of the appeal before the court.
Representing the DPP, Attorney Mboki Chilisa, of Collins Chilisa Consultants argued that since the proceedings in court were likewise instituted in order to avoid criminal proceedings being instituted, the proceedings were civil in nature. Further, they argued, the power of the DPP to decide whether to bring criminal proceedings is granted under Section 15A (3) of the constitution. Similarly, a challenge to the DPP’s exercise of his or her constitutional functions is a constitutional matter.
“I am persuaded by the appellants’ argument that the application in the court below was not a criminal matter and that Section 12 of the Court of Appeal Act is not applicable,” said Justice Lesetedi. “The respondents must have been alive to this legal position when they instituted the proceedings in the court.”
The Court of Appeal noted that the respondents had not yet been brought before the trial court on the charges and had thus not pleaded to those. “They could thus not be acquitted of the charges they had not been called upon to plead to.”
The appellants urged the court to restrain only where it has been shown that there was abuse of process. Attorney Chilisa submitted that the respondents had failed to place anything concrete before the High Court to show that the DPP acted in bad faith. Justice Lesetedi supported this, noting that it was not proven that the DPP acted in bad faith.