The misery of the Director of Public Prosecutions, Stephen Tiroyamodimo, continues to worsen following another failure in another high profile case.
This week the Gaborone High Court discharged and acquitted former Capital Management Botswana (CMB) directors Rapula Okaile and Tim Marsland, clearing them of any wrongdoing in the alleged theft of P480 million.
The DPP had alleged that money belonging to the Botswana Public Officers Pension Fund (BPOPF) was misappropriated when the portfolio was under the management of CMB.
Putting the DPP director on the spot again, Judge Boipuso Tshweneyagae ruled that Tiroyakgosi failed to prove his allegations of money laundering and obtaining by false pretence against the accused.
Challenging the DPP’s decision to indict them, the applicants put a review application before the courts and cited the DPP director and the Attorney General as respondents. The review application was made in terms of Section 127 (10) of the Constitution as read with Order 61 of the Rules of Court.
Justice Tshweneyagae ruled that the DPP derived his powers to institute criminal proceedings against anyone from Section 51A of the Constitution.
Okaile and Marsland were charged together in a charge sheet dated 18 June 2019 and were alleged to have committed money laundering contrary to Section 47 (1) of the Proceeds and Instruments of Crime Act (Cap 08:03) as read with section 24 of the Penal Code and Section 332(8) of the Criminal Procedure and Evidence Act of the Laws of Botswana.
For their defence, the applicants argued that the respondents misunderstood the Private Equity Investment (PEI) “entered between their company, CMB (Pty) Ltd and BPOPF”.
The applicants argued that despite the existing contract that stipulated terms and conditions, as well as the nature of the agreement entered into by CMB and BPOPF, the DPP acted irrationally when charging them for offences of money laundering.
“They argue that they have never received any proceeds of crime or misrepresented and/or induced BPOPF, the limited partner in the agreement, to inject money in BOP. That, the funds from BPOPF cannot be regarded as ‘dirty’ money,” said the judge.
Consequently, Justice Tshweneyagae ordered that charges against the applicants be quashed and set aside, warrants of arrests issued against Marsland be set aside and cancelled and that the respondents, the DPP director and the Attorney General, pay costs at attorney scale.
This was the second time the prosecution suffered another setback in the CMB saga. In late 2020, the Lobatse High Court similarly reviewed and set aside charges proffered against Rapula Okaile.
Seeking a review relief from the courts, Okaile challenged the DPP’s decision to lay charges against him at the Village Magistrates Court. In this matter, the DPP had alleged that he had attempted to defraud BIFM of P80 million while at the helm of CMB as director.
However, Judge Reuben Lekorwe ruled in favour of Okaile. “In the final analysis, it does not appear to me that the evidence in possession of the first respondent prima facie establishes that the applicant had done some cognizable act towards the intention to defraud either FNBB or BIFM.
“To the extent that evidence has failed to meet the minimum threshold ‘of reasonable and probable cause’, the decision to charge the applicant is irrational and accordingly reviewable.”
The judge emphasised that prosecutors should always examine the strength of their cases and that there must be reasonable and probable cause for an accused to be arraigned before the courts.
Subsequent to these dismal outcomes, there has been mounting pressure for the DPP to resign.
Meanwhile, efforts by The Business Weekly & Review to get a comment from President Mokgweetsi Masisi’s office have hit a snag as the Press Secretary to the President, Batlhalefi Leagajang, continues to ignore this publication’s enquiries.
Following a recent court ruling that the President should consider firing Tiroyakgosi as the DPP, this publication sent an enquiry to Leagajang seeking to establish President Masisi’s position regarding this costly losses.
