LEGAL HAWKS: Defence and State attorneys

A defense lawyer in the infamous National Petroleum Fund (NPF) corruption trial, Kgosietsile Ngakaagae, has demanded to cross examine state witnesses among them former Permanent Secretary Kgomotso Abi and officers of the Directorate of Intelligence and Security Services (DIS).

Ngakaagae was responding to a civil application brought by the Directorate of Public Prosecutions (DPP) for forfeiture of assets of interested parties in the NPF matter in relation to a contract between DIS, Ministry of Energy, and Basis Points – a company in which Bakang Seretse is a director.

Approximately P60 million was paid to Basis Points, which contract and payment the DPP says were fraudulent.

However, Ngakaagae accused the DPP of trying to intimidate the court by bringing a voluminous file of affidavits posited by Abi and his officials at the Ministry of Energy, as well as DIS officers.

He appealed to Justice Omphemetse Motumise not to rely on the affidavits for his ruling saying that there is need for cross examination of the witnesses.

“There is a dispute of facts here, there is a stalemate, and the best solution is for the witnesses to come to the dock, to be cross examined to defend their affidavits. Another option is for the court to dismiss this matter since the applicant has failed to prove that the respondents have committed any crime as prescribed by the Proceeds and Instruments of Crime Act to warrant forfeiture of assets,” he said.

He raised suspicion that the government officers were in deep trouble hence the DPP was trying to cover up their inefficiencies with regard to the contract in dispute.

Ngakaagae said that Proceeds and Instruments of Crime Act (PICA) states that forfeiture can only be executed when it has been proven that a person has committed Money Laundering, Corruption, Cheating Public Revenue, or  serious crimes related activities to acquire assets under scrutiny. None of the above have been proven against any of the respondents, he stated.

He emphasized that the burden lies with the DPP to prove that the assets were proceeds of a crime and not for the Respondents to prove their innocence.

Earlier on, the DPP’s Ernest Mosate said the parties in the NPF criminal matter fraudulently entered into a contract with DIS and Ministry of Energy for consultancy services and procurement of oil stock for Botswana Oil company.
He said that the P60 million was used to purchase property and luxury vehicles some of which were registered under relatives and friends of the interested parties.

According to information exchanged in court,  Basis Points had a contract with the ministry, but between March and August 2016 it entered into a new contract with DIS for consultancy services and procurement of oil stock.

There were meetings held and correspondence exchanged between the three parties authorising the transactions that led to the disbursement of the P60 million in dispute. 

However, in their affidavits, the DIS and ministry officials have disowned the correspondence and the signatures therein, as well as the DIS letterhead, whilst minutes of the said meetings bear nobody’s signature.

Ngakaagae dug his heels saying this gesture is the main reason why the witnesses should be called for oral testimony and be subjected to cross examination.

He stated that the DPP should not try to blame third parties for government’s failure to comply with its’ processes and systems.

Unoda Mack, represents two Respondents, among them a Mercedez Benz B291 BEX that was purchased by one Janet Mooketsi at the tune of P650,000 with the assistance of Sadique Kebonang.

He wondered whether the DPP implied that the vehicle was implicated in some criminal activities since they have failed to prove that Mooketsi acquired the money through unscrupulous means prescribed in the PICA. 

The matter was postponed to November when Mack would wrap up his arguments and DPP replying.