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Judge deliver final blow to Okaile, CMB

Okaile

The High Court on 27 January 2022 confirmed a rule nisi issued against properties connected to Rapula Okaile and dispensed a Restraining Order under section 35 (3) of the Proceeds and Instruments of Crime Act. Judge O.M. Motumise has agreed with the Directorate of Public Prosecutions (DPP) that there is enough evidence to suggest that there is reasonable suspicion that the property could be proceeds of crime, and should be ceded to the Office of the Receiver.

The order relates to Lot No. 311, Extension 5, Gaborone, Lot No. 312, Extension 5, Gaborone, Lot No. 2839, Extension 10, Gaborone, Lot No. 22022, Gaborone West, Extension 13, Gaborone, Lot No. 57266, Block 10, Gaborone, Lot No. 3277, Extension 12, Gaborone, Ploughing field at Madiabatho, Pitseng, Scania Truck registered B 925 AUO, Toyota Land Cruiser registered B 925 BBU, Toyota Hilux registered B 675 AYU, Toyota Corrolla registered B 974 BBP, Toyota Corrolla, registered B 679 AZN, JCB Backhoe loader registered B603 APT, JCB Front end registered B 288 AKY, Massey Ferguson Tractor registered B 993 APJ, Tipper Truck registered B 737 ACE, Fuel tank trailer registered B479 BGB, Link Trailer registered B712 AJK, Link Trailer registered B 714 AJK, Link Trailer registered B 498 BGF, Link Trailer registered B 492 BGF, 18 Hydraulic Disc Plough serial number 4302, Row Planter serial number NB75-1272, Farrow Mould Board, serial number ARPG47110, Toyota Land Cruiser registered B587 BEW.

The main issue in the proceedings was to establish whether the various properties cited as respondents should be placed under restraint in terms of the proceeds and Instruments of Crime Act (PICA) on account of a reasonable suspicion that they are proceeds of crime and were acquired in furtherance of the offence of money laundering contrary to section 47 of PICA.

On 19 November 2019, the Director of Public Prosecutions brought an ex parte application in terms of sections 35 and 39 of PICA, for a rule nisi to secure and restrain the respondents pending confirmation of the rule nisi and the subsequent institution and finalisation of the civil forfeiture or civil penalty proceedings against the said respondents.

The DPP alleged in its ex parte application that the respondents (properties) were proceeds of crime in that they were bought with funds obtained by false pretences from the Botswana Public Officers Pension Fund (BPOPF) by Mr Rapula Okaile and or companies associated with him, amongst them; Capital Management Botswana (CMB), CMB Fund 1, and others.

The court had granted the rule nisi, placing the respondents (properties) under restraint and in the control of the Receiver pending confirmation of, or the discharge of the rule nisi. Judge Motumise confirmed the rule nisi on 25 February 2021, following a lengthy hearing. Okaile had filed extensive answering and supplementary affidavits contesting the rule nisi and seeking its discharge. “The crux of his contention was that the properties were lawfully acquired from innocently derived income,” Judge Motumise observed.

The Directorate on Corruption and Economic Crime (DCEC) received a report on the possible misappropriation of BPOPF funds by one of the directors of CMB, Rapula Okaile in November 2017. “The allegations were of a serious nature, involving an amount in the region of P500 million. The DCEC’s Finance Investigation Unit set up a team of investigators to investigate the allegations. The investigations took about two years to complete. The investigations set out a detailed trail of funds which the BPOPF had intended to invest in private equity funds.”

The relationship between Okaile’s CMB and the BPOPF was set in motion on 11 November 2014 when the two parties entered into an En Commandite Partnership Agreement whose object was the establishment of a partnership called (the BOP, or the Fund), a Botswana private equity fund established for the investment of BPOPF funds in portfolio companies to be approved by BPOPF. Under the agreement, the BOP would accept capital commitments; acquire, hold, and dispose investments in accordance with the Investment Policy of the BPOPF.

Judge Motumise observed that Okaile bought personal assets for himself with some of the BPOPF money. “What Mr Okaile did not dispute that much of the money went into his company, CMBF1 whicjh was contrary to the En Commandite. It is more probable than not that the money was thus obtained under the false pretence that it was going to be invested on behalf of the BPOPF when that was not true. The purchase and registration of the properties (respondents) in Okaile’s name was not an investment on behalf of the BPOPF,” the judge surmised.

The judge found that it was inconceivable for Okaile to have bought so many properties from his earnings and dividends. “First, his monthly salary of P120 000.00 for the period 2016 and 2017 would have been less than P3, 000 000.00. If the dividends of P4, 000 000.0 arte added, the total would still havwe been less than P10 000 000. 00. Allowing living expenses, other household expenditure and tax obligations just to mention a few obvious expenses, Okaile’s disposable income would have been far less than the above total,” Judge Motumise observed.

The judge agreed with the DPP, “I have accordingly come to the conclusion that a case has been made in that it is more likely than not that the funds were obtained by false pretences from the BPOPF by Okaile. It is equally more likely than not that the purchase of the respondents was money laundering contrary to section 47 of PICA.” By so doing Judge Motumise confirmed the rule nisi, subject to the exclusion of Lot 226, Extension 5 Gaborone, against which the DPP has abandoned its prayer for restraint.

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