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DPP powers challenged in court


DPP powers challenged in court

Publishing Date : 16 April, 2018

Author : TEBOGO KGALEMANG

After being put under a restraining order by the Directorate of Public Prosecutions (DPP) recently, Kgori Capital has now launched a civil application challenging powers of the DPP.


In their filing notice filed before the court this week, Kgori Capital stated that, “The DPP does not have the requisite to institute this confiscation civil penalty application. The powers of the DPP are set out in the constitution of the Republic of Botswana at Section 51 A (3) (a), (b), (c) and (d). These powers are primarily and exclusively prosecutorial in nature.”


Kgori goes on to state that the powers do not include the institution of civil penalty order application in terms of the Proceeds and Instrumental of Crime Act. And that the sections which seek to clothe the DPP with the power to institute these proceedings are ultra vires the constitution to the extent that they seek the powers of the DPP beyond those that have been defined by the constitution. The sections, they contend are invalid and unconstitutional and of no force and effect at law. They urged the court to strike down the sections as unconstitutional and void.


DPP was granted the application of forfeiture of P10 million by Lobatse High Court Judge Nthomiwa last week. He stated he was relying on Section 35(3) of the Proceeds and Instruments of Crime Act, Cap 08:03. “The order relates to the credit amount of P10 million standing to the credit of Investment Account Number: 906 000 149 0058 held by Kgori Capital Botswana Kgori Capital with Stanbic Bank Botswana. The receiver shall take control of all property specified in the order pending the institution and finalization of proceedings for a Civil Penalty Order,” Judge Nthomiwa ruled.




He went on to stress that all persons with knowledge of this order were, other than as required and permitted by the order, prohibited from dealing with the said amount, “except in the manner or circumstances, if any, specified in the order”. The sum in question is a portion of the total credit balance of P30m standing to the same account as at January 22, 2018.

An affidavit deposed by Director of Public Prosecutions (DPP), Stephen Tiroyakgosi states that the amount in question represents a reasonable estimate of the value of benefits and incidental expenses derived by Kgori Capital as a result of a multiple serious related criminal activities.


The offences include cheating the public revenue; abuse of public office; obtaining by false pretences and money laundering.

The court heard that Kgori Capital had over a period of 10 months, debited to the Kgori National Petroleum Fund Account held with Stanbic Bank the total amount of P10m ostensibly as management fees contrary to the consultancy agreement. The consultancy agreement is such that Kgori Capital could only benefit as a sub-contractor with whatever fees it might be entitled to, claimable from Basis Points Capital Botswana Limited from the consultancy price.


“By paying itself the so called management fees from the Kgori National Petroleum Fund account, Kgori Capital breached the National Petroleum Fund and diverted to itself the said P10m. As investigations are continuing, this figure is likely to change, especially at the time of making of the substantive order,” states Tiroyakgosi in his affidavit.

It is said that from March 7, 2016 to December 14, 2017, various debits were entered against the National Petroleum Fund account No: 906 000 208 5742 held with Stanbic Bank, with the amounts credited to the Kgori Capital bank account No: 906 000143 6320 held by Kgori Capital with Stanbic Bank Botswana allegedly as management fees in payment to Kgori Capital.



The information before court further suggests that the investigations have revealed that the National Petroleum Fund consultancy agreement had only Basis Points Capital as the only contracting party with Botswana government concerning the services that Kgori Capital purported to render and to be entitled to be paid for. “Kgori Capital could only render the services to government as a sub-contractor under the consultancy agreement, with all its fees only claimable from and payable by Basis Points Capital.


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The Department of Energy late last year withdrew all National Petroleum Fund monies and investment portfolios from respective banks and investment institutions. A communication from the Department of Energy stated that all proceeds into the National Petroleum Fund would now be deposited into the Government Remittance account held at Bank of Botswana. Furthermore, all commitments out of the Fund shall be routed through the Ministry of Finance and Economic Development for payment through the Government Remittance account.




The latest decision by government follows a series of events originated by a money laundering charge on one Bakang Seretse who was Managing Director of Kgori Capital is in his personal capacity implicated in a case involving P326 million which is perceived as thus far the leading financial scandal in monetary value. Bakang is accused alongside two others, Botho Leburu and Kenneth Kerekang. Alphonse Ndzinge is the new Kgori Executive Manager.

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