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Court intensifies Rapulas troubles in CMB case

Gaborone High Court Judge Omphemetse Motumise has dismissed with costs Chief Executive Officer of Capital Management Botswana (CMB) Rapula Okaile and further slapped him with another charge of contempt of court on Friday.

Okaile and his wife Neo had approached the court on urgent basis, seeking an order for the release of their eight motor vehicles impounded by the Directorate on Corruption and Economic Crime (DCEC) last month. The applicants’ contention was that their vehicles have been seized without the due process of law such as a warrant or lawful authorization.

Delivering the ruling, Motumise stated that, “I find that the applicants have failed to meet the requirements of urgency. Furthermore, although the application was lodged two days after the vehicles were seized, the applicants have failed to prove that they will not be granted an adequate alternative remedy in due course. They have also failed to establish that the balance of convenience favours them.”

The judge stated that where the impounded vehicles were wrongly seized by the state, the owners thereof have a suite of remedies at their disposal, including among others, restitution; general damages, special damages or the applicants could during the course of investigates simply prove that the vehicles were not proceeds of crime, in which event, they will be released without the need for litigation.  “But the applicants do not say why all these remedies will not be available to them in due course or why they are not suitable remedies.”

He said the purpose for which the impounded vehicles have been seized was to conduct investigations: an assessment of the balance of convenience requires a balancing exercise between the rights and interests of law enforcement agencies to investigate and prosecute crime and the right of individuals to enjoy the ownership and possession of their property.

“If the vehicles are released before the conclusion of investigations, this could constitute a severe, if not a fatal blow to the investigations. The questions whether the vehicles were acquired through proceeds of crime would not thereafter be properly or effectively investigated. The respondents will have no guarantee that the vehicles will remain available for investigative purposes, and on the other hand the applicants will have recourse to damages,” ruled the judge, adding that the case favours the

“To express my revulsion and opprobrium at the applicants’ disregard of the order of this court and especially Rapula, I will order punitive costs against them. But this is not enough to send a strong message to the applicants that they need to obey the law and court orders.”
It was then that the judge dealt with the issue concerning the motor vehicle registered under CMB.  The DCEC had submitted that none of the applicants has the authority to claim it since CMB is presently under statutory management pending a judgement due next week. The court had in the previous mention in a matter concerning the appointment of Mr Peter Collins as statutory manager, ruled that Collins’s appointment shall remain effective pending the finalization of the matter.

In law, in view of the said order, the statutory manager is, the only person entitled to institute proceedings on behalf of CMB and not any of the applicants. The applicants however, sought to deflect the point by suggesting that statutory management is not the same as judicial management. Their contention was that the statutory manager deals with the day to day operations of the company while its directors can deal with other matters such as litigation.

Judge Motumise however ruled that, “In the face of the order of this court and the provision, the applicant’s position is disingenuous and I reject it. The applicants have, by openly purporting to act for, or on behalf of CMB, notwithstanding their knowledge of the order of this court, committed an act of contempt of court. Those actions deserve severe and effective censure from this court.” “I express my displeasure at the applicant’s contemptuous conduct and I find them liable, especially Rapula to be cited for contempt of court.”

The DCEC had on their arguments, urged the court to dismiss the application on the basis that leaving the vehicles at the disposal of the applicants has the inherit danger of the vehicles being disposed of, thus defeating the effectiveness of any criminal or civil forfeiture order that the courts may order later.  

An officer of the DCEC, Goitseone Esely stated on a replying affidavit that the DCEC was presently investigating the Botswana Opportunity Partnership (BOP) into which a commitment of P500m was made by Botswana Public Officers Pension Fund (BPOPF) on the inception of the contract between it and CMB in 2014.

CMB is the general manager of BOP where BPOPF is a limited partner and has contributed the sum of P477m to be invested and managed by CMB. There is a reasonable suspicion that some of the funds were diverted to CMB accounts and in turn ended up financing the vehicles owned by WARENTEBO Investment. She stated that the impounded vehicles might have been acquired through proceeds of crime, and that they were seized in the course of lawful investigations under the DCEC Act. 

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DPP drops Kably threat to kill case

22nd March 2023

The Botswana Democratic Party (BDP) Chief Whip and Member of Parliament for Letlhakeng/Lephephe Liakat Kably has welcomed the Directorate of Public Prosecution (DPP)’s decision not to prosecute BDP councillor, Meshack Tshenyego who allegedly threatened to kill him. However, the legislator has warned that should anything happen to his life, the state and the courts will have to account.

In an interview with this publication, Kablay said he has heard that the DPP has declined to prosecute Tshenyego in a case in which he threatened to kill him adding that the reasons he received are that there was not enough evidence to prosecute. “I am fine and at peace with the decision not to prosecute over evidential deficits but I must warn that should anything happen to my life both the DPP and the Magistrate will have to account,” Kablay said.

Connectedly, Kably said he has made peace with Tshenyego, “we have made peace and he even called me where upon we agreed to work for the party and bury the hatchet”.

The DPP reportedly entered into a Nolle Prosequi in the matter, meaning that no action would be taken against the former Letlhakeng Sub-district council chairperson and currently councillor for Matshwabisi.

According to the charge sheet before the Court, councilor Tshenyego on July 8th, 2022 allegedly threatened MP Kably by indirectly uttering the following words to nominatedcouncilor Anderson Molebogi Mathibe, “Mosadi wa ga Liakat le ban aba gagwe ba tsile go lela, Mosadi wame le banake le bone ba tsile go lela. E tla re re mo meeting, ka re tsena meeting mmogo, ke tla mo tlolela a bo ke mmolaya.”

Loosely translated this means, Liakat’s wife and children are going to shed tears and my wife and kids will shed tears too. I will jump on him and kill him during a meeting.

Mathibe is said to have recorded the meeting and forwarded it to Kably who reported the matter to the police.

In a notice to the Magistrate Court to have the case against Tshenyego, acting director of Public Prosecutions, Wesson Manchwe  cited the nolle prosequi by the director of public prosecution in terms of section 51 A (30) of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana as reasons for dropping the charges.

A nolle prosequi is a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.

“In pursuance of my powers under section 51 A (300 of the Constitution and section 10 of the criminal procedure and evidence act (CAP 08:02) laws of Botswana, I do hereby stop and discontinue criminal proceedings against the accused Meshack Tshenyego in the Kweneng Administrative District, CR.No.1077/07/2022 being the case of the State vs Tshenyego,” said Manchwe. The acting director had drafted the notice dropping the charges on 13th day of March 2023.

The case then resumed before the Molepolole Magistrate Solomon Setshedi on the 14th of March 2023. The Magistrate issued an order directing “that matters be withdrawn with prejudice to the State, accused is acquitted and discharged.”

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DPP seizes prosecution duties from Police

22nd March 2023

Directorate of Public Prosecution (DPP) has finally taken over prosecution from the Botswana Police Service (BPS). The police have been prosecuting for years, but the takeover means that they will now only focus on investigations and then hand over to the DPP for prosecution.

Talks of complete takeover began as far back as 2008, but for years it seemed implementation was sluggish. However, the Minister of Justice, Machana Shamukuni, revealed that the complete takeover is expected to be completed soon.

During a presentation to the Committee of Supply by Shamukuni this week, it was revealed that the project has been implemented in 22 police stations nationwide, including Maun, Selebi-Phikwe, Palapye, Francistown, and Kasane. He further stated that the project has been allocated P3,000,000 for the 2023/2024 financial year to facilitate the opening of more satellite offices for the DPP.

Shamukuni said the Lobatse station is scheduled for a complete takeover by the end of May 2023, while the Kasane DPP satellite office has been established and became operational as of February 1, 2023.

“As reported previously, preparations are at an advanced stage to open a satellite office in Tsabong to curtail expenses, as well as frequent long-distance trips to these areas, as it is currently serviced by the Lobatse DPP office,” Shamukuni said.

Shamukuni said that the takeover strategy is to enable a seamless and gradual takeover of prosecution from the BPS without overwhelming and overstretching the thin resources at its disposal.

According to Shamukuni, the implementation of the prosecution takeover project has increased the workload of the 211 prosecutors in the DPP establishment.

Furthermore, the Justice Minister said DPP statistics show that the DPP has a total of 11,903 cases and dockets as of January 2023. He indicated that this is a significant increase in the number of cases being handled by the DPP, considering that in November 2021, the DPP had just over 8,471 files.

“Out of the total case load, 8 382 are cases pending before various courts while 3521 are dockets received from law enforcement agencies of which 1 325 are awaiting service of summons while the rest are being assessed for suitability of prosecution or otherwise” said Shamukuni.

He further stated that The DPP has consistently maintained an 80% success rate in matters completed at court.

“As at the end of January 2023, the success rate stood at 82.3% against a target of 90% whilst the average performance in respect of turnaround time for conclusion of cases at court stood at 17.5 months against a target of 18 months,” he said.

BACKLOG OF CASES – LAND TRIBUNAL

Meanwhile, Minister Shamukuni has revealed that Gaborone land Tribunal is experiencing a backlog of cases. Before parliament this week, Shamukuni revealed that a total 230 appeals were completed for the period of April 2022- December 2022 and only 76.5% of them were completed within set time frame.

The minister said that the Gaborone division has experiencing a backlog of cases due to manpower constraints and he further indicated that presiding officers from other divisions have been brought in to expedite case disposal.

He further indicated that the land tribunal is a specialized court that has been empowered to resolve appeals arising from land boards. “It has been mandated to determine appeals from the decisions of Physical planning committees of Districts Councils” said Shamukuni.

Land Tribunal relocated to the Ministry of Justice from Ministry of Land and Water Affairs in November 2022.

“An amount of P37, 842,670 is requested to cover salaries, allowance and other operational expenses for the Department of the land Tribunal,” alluded Shamukuni

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BCP, AP stalemate in 7 constituencies

21st March 2023

When the Botswana Congress Party (BCP), Alliance for Progressives, Botswana Labour Party (BLP), and conveners reconvene next week, the controversial issue of allocation of the seven constituencies will be the main topic of discussion, WeekendPost can reveal.

Not only that, but the additional four constituencies will also dominate the talks. The idea is to finally close the “constituency allocation phase,” which has proven to be the most difficult part of the ongoing negotiations.

Earlier this year, the two parties announced that the marathon talks would be concluded by February. Even at a media briefing last month, BCP Secretary General Goretetse Kekgonegile and Publicity Secretary Dr. Mpho Pheko were optimistic that the negotiations would be concluded before the end of February.

However, it is now mid-March and the talks have yet to be concluded. What could be the reasons for the delay? This is a question that both Kekgonegile and Pheko have not responded to, as they have ignored the reporters’ inquiries. However, a senior figure within the party has confided to this publication as to what is delaying the highly anticipated negotiations.

“We are reconvening next week to finalize constituency allocations, taking into account the additional four new ones plus the outstanding seven,” he explained. It later surfaced that Gaborone Central, Gaborone North, Mogoditshane, Tswapong North, Francistown West, Tati West, and Nata Gweta are all contested by both BCP and AP. This is because the other 50 constituencies were allocated by December of last year.

The three parties have failed to find common ground for the Bosele Ward by-elections. Are these constituencies not a deal breaker for the talks? “None of the constituencies is a deal breaker,” responded a very calm BCP official.

In Bosele Ward, AP has yielded to BCP, despite most of its members disapproving the decision. On the other hand, BLP has refused, and it will face off with BCP together with Botswana Democratic Party (BDP) and Umbrella for Democratic Change (UDC).

The decision by BLP to face off with BCP has been labelled as a false start for the talks by political observers.

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