Former Capital Management Botswana (CMB) director, Tim Marsland has rejected claims that he is a fugitive from justice. Writing in an answering affidavit to respond to the Directorate of Public Prosecutions (DPP), Marsland says the mere fact that he knew of the existence of investigations against him did not elevate him to being a fugitive to justice.
Marsland who argues malice and bias against him, says there was never any formal indication to either himself or his attorneys in Botswana or South Africa that he is to be charged formally. “Moreover I was not informed about the fact that a Warrant for my arrest had been authorized. I only became aware of the existence that I am being charged with offences and that a Warrant for my arrest had been issued on 12 July 2019,” he says.
The former CMB director wants the court to set aside the warrant for his arrest because the order is competent. He is also claiming that the warrant in itself was not properly sought and dismisses claims that South African courts found the order to be competent.
“The bias in the investigation is quite simply clear in that there was never an intention for an interview to give information in order to determine whether a reasonable suspicion or a prima facie case exists. The sole intention was to interview me and then proceed to trial. This is clearly indicative of a biased approach to an investigation,” he writes.
According to Marsland there was no request that he avail myself to any court in Botswana to stand trial, had he been made aware of such request, “I have already indicated that I would have made the necessary arrangements to submit myself to the jurisdiction of this Honourable court.”
“The allegation that a Warrant of Arrest in extradition process was the only option to bring me before the jurisdiction of these courts is simply untruthful. In order for me to not have availed myself to the jurisdiction of this Honourable court. I must have known of the existence of a warrant of Arrest, something I did not know of until 12 July 2019,” he writes in his affidavit.
Marsland says since he was not ion Botswana, and there was therefore no risk that he would flee Botswana, the question arises why the Botswana Authorities did not engage with his attorneys in both Botswana and South Africa to ensure that he avails himself to the jurisdiction of the court. “The answer to this question is simple in nature. The answer is that there is a malicious and biased motive against me and to request my cooperation would defeated, since I would have cooperated, this malicious and biased approach against me,” he writes.
Marsland is arguing that investigations on this matter have not been concluded and rejects the notion that he failed to avail himself for an interview and then a trial. “This is a clear indication as one can possibly get that a predetermined outcome had already been decided upon and that the investigation was motivated by bias and/or ulterior motives,” he writes.
He says a proper investigation of the transactions on which DPP rely to establish fraud and/ or theft by false pretenses and or money laundering was not properly conducted. The former CMB director is also of the view that the matter is purely civil in nature and is not criminal.
Marsland is currently incarcerated in South Africa and is accused alongside Rapula Okaile of having siphoned money, approximately P477 million from Botswana Public Officers Pension Fund (BPOPF) illegally. The two have denied these charges claiming they invested the BPOPF money as per the conditions of a contract they entered into with the BPOPF. Former BPOPF Chief Executive Officer, Boitumelo Molefhe is expected to be the star witness in the case.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.