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BY JOSEPH BALISE
In a water-tight judgment against four former employees of the Department of land who had formed themselves into a criminal syndicate that sold land to complicit buyers in and around Francistown and Kasane areas delivered by the Francistown High Court recently, Justice Lot Moroka pronounced unequivocally that the long arm of the law does not shy away from stretching to recoup proceeds of serious crimes from unwarranted beneficiaries.
The criminal syndicate comprised Moloko Ursula Mokgokong, Julius Selemogwe, Reuben Tshule and Terrence Modikwe who were slapped with an order to pay Botswana government P700 000 each (P2.8 million in total) while the concerned portions of land were declared forfeited back to government.
The enactment of the Proceeds and Instruments of Crime Act (PICA) in 2015 was born out of a realization that existing legislation was inadequate as it is reactive and conviction based; often coming after the proceeds of crime have been dissipated thus making crime a rewarding experience.
The purpose of PICA is to remove the profit incentive from crime. The preamble to PICA states that it is: “An Act to deprive persons of convicted of certain crimes of the benefits and rewards gained from such crimes; to deprive persons of property suspected to be a proceed or instrument of crime; to deal with issues such as money laundering, racketeering and other incidental and connected matters”.
Furthermore, PICA is a relatively new Act which has brought a paradigm shift in dealing with proceeds of crime. In terms of classical criminal law, forfeiture of the proceeds of crime can only come after conviction. The promulgation of PICA came as a result of the realization of the inadequacies in Botswana’s conventional criminal law measures aimed at dealing with organized crime, money laundering, proceeds of crime and racketeering.
PICA has brought about a fundamental change in dealing with proceeds of crime. It has introduced a new concept such as instruments and instrumentalities of crime. Most importantly it has introduced the concept of civil penalty orders and civil forfeiture orders not necessarily conviction based. To cap it all,, it has brought into Botswana criminal law, the concept of in rem applications traditionally applicable to Admiralty law.
The Act also has dimensions as it deals with proceeds of crime committed in foreign jurisdictions.
In his judgment, Justice Moroka underscored that civil forfeiture is increasingly being accepted by many nations as a legitimate law enforcement tool to combat serious crime. Forfeiture both prevents further illicit use of the property and imposes an economic penalty, there by rendering illegal behaviour unprofitable.
According to Justice Moroka, the entity and authority charged with the enforcement of PICA is prescribed by the Act itself. Upon reading the provisions of the Act, there is no doubt at all as to who the authority tasked with the making of the application for Restraining Order; under Chapter IV sections 35 to 46 is. It is the Directorate of Public Prosecutions (DPP).
Furthermore, there is no doubt as to the authority responsible for the filing of both the civil penalty and civil forfeiture applications is. Part 11, sections 11 -15 attest to the authority of the DPP to apply for a civil penalty order under the Act. Similarly, sections 18 -21 empower the DPP to make applications for forfeiture orders.
“The applications for restraint of use of alleged proceeds of crime; civil penalty order and civil forfeiture orders are in pursuit of criminal investigations and possible prosecution. These fall within the realm of the DPP’s mandate”, pronounced Justice Moroka.
The respondents had argued that the acts for which the restraint order; the civil forfeiture and the civil penalty order are sought were committed in 2008 and 2009 before the promulgation of the PICA which came into operation in 2015.
It is apparent from the founding affidavit of the DPP and it is indeed common cause, that the alleged acts of crime linked to the properties are said to have been committed in the years 2008 to 2009. It is also common cause that the commencement date of PICA is 2015.
As far as the law is concerned, it is a well known rule of statutory interpretation that in the absence of express provisions to the contrary, a statute regulates future conduct and is construed as operating only on cases or facts which came into existence after it was passed.
In so far as it may, intend to impact on past conduct, statute is either retroactive or retrospective in that it changes the consequences for the future of, pre-existing transactions and matters; or whether the provisions of the Act are deemed to have been in force from an earlier date than that on which it was in fact enacted.
There is a presumption against retrospective activity, but "even where a statutory provision is expressly stated to be retrospective in its operation it is an accepted rule that, in the absence of contrary intention appearing from the statute, it is treated as not affecting completed transactions”.
Justice Moroka said the basis of this presumption is consistent with elementary considerations of fairness which dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.
“Therefore, in its own express words, the legislature clearly intended that the provisions of the Act in so far as applications for civil penalty orders are concerned to be deemed to have been in force from an earlier date than that on which it was in fact enacted. That earlier date goes as far as 20 years. Section 13 of the Act put this beyond the pale of doubt by stating that: The twenty years period referred to in section11 (1) may extend back prior to the commencement of this Act," pronounced Judge Moroka.
Section 11 is in Part 11 of the Act with the Heading – Civil Penalty Orders. This makes its application retrospective as far as applications for Civil Penalty Orders are concerned. The DPP may in terms of this provision file applications with the Court in which he seeks civil penalty orders for acts that occurred as far back as twenty years ago.
“Also of immediate interest is Part IV of the Act particularly sections 25 – 27 as relate to civil forfeiture applications. In terms of 26 (2), a civil forfeiture application may be made for forfeiture over property in relation to a criminal activity that occurred within 12 years of the making of the application," observed the presiding judge.
The judge held that section 11 makes it lawful for the DPP to apply for civil penalty orders in respect of transactions already in the past. “This is the meaning of retrospective application of an Act”, emphasized the judge.
“In saying that the “twenty years’ period referred to in section 11 (1) may extend back to prior to the commencement of the Act,” section 13 makes the application of the provisions of the Act retroactive in that they are to operate as of a time prior to its enactment. The language is clear and unambiguous. This is clearly the intention of the legislature," Justice Moroka ruled.
Buttressing the clarification, the presiding judge said Part 11 of the Act, on a proper construction, does apply as from the date the Act came into operation to activities that took place before it came into operation, with the result that property can be regarded as an instrumentality of an offence or as proceeds of serious crime for the purposes of section 11 – 15 of the Act even if such activities in question took place before the Act came into operation.
The main objective of the Act, is to prevent criminals from benefiting from the proceeds of crime and to discourage the use of property for criminal purposes. “It is clear from the wording of the Act that the legislature intended to exclude the operation of the presumption against retrospectivity,” emphasized Justice Moroka.
On whether the application for a civil penalty is incompetent to the extent that it is brought against property and not the person, Justice Moroka explained that the law on organized crime, money laundering and combating the proceeds of crime has evolved over the last twenty years rendering ordinary knowledge obsolete.
Greater demands than ever before have been put on the legal and judicial fraternity to keep up with the pace of changes particularly in the ever evolving field of corruption, racketeering, money laundering and development of laws around proceeds of crime. The challenge is thrown to all practitioners of the law, to upgrade their skills in this area for better service to the course of justice.
If properties and not their owners are cited as parties in the application, how then would their owners know and oppose the application? Is the commonly asked question in these formative stages of interaction with PICA.
In terms of the law, Justice Moroka said a restraining order is made for the purpose of securing property pending either an application for civil forfeiture, civil penalty order which applications will invite the owner of the properties to show cause why such properties cannot be declared forfeit on account of their being either proceeds of crime or instruments of crime.
“Therefore, in answer to the respondents’ point of law on the propriety of ex parte applications, the answer is that the Act permits that applications for restraining orders be made ex parte. The court however, has a discretion to order notice subject to the provisions of section 40 subsection (2). An application for restraining order may be made against the property ex parte. The query that property is not a persona has no legal validity. The preliminary point cannot succeed," ruled Justice Moroka.
The DPP is saying in his affidavit that all the properties were allocated by the criminal syndicated illegally and that the beneficiaries of the allocations knew or ought to have known that the purported sale and transfer of the individual properties was unlawful.
The DPP and other deponents in his affidavit gave a blow by blow account of how each property constitute proceeds of crime or is tainted with illegality. In all cases members of the criminal syndicates are said to have approached buyers in social circles and offered the pieces of land. “Deals were concluded and bogus sales made,” pronounced the presiding judge.
Justice Moroka concluded that all respondents were afforded an opportunity to answer the application. Only Sylvia Onkgomoditse Chapi and Mokuru Buzwani filed answering affidavits detailing how they came to be allocated the plots. They had made prior applications and believed the approach of the officials was in legitimate pursuit of their applications.
They did not know the internal working of the Department of Lands and could not therefore have known if the offers were bogus. As far as the two are concerned the DPP has not on balance of probabilities proven its case. The same applies to Botswana Building Society.
The affidavit of Morutuludi Tshwanelo speaks in detail how a syndicate of public officials illegally sold land to buyers who with open eyes willingly participated in the illegal sale of different pieces of land in Francistown and Kasane.
“Despite the damning allegations leveled against them the alleged members of the criminal syndicate elected not to file any answering affidavit in spite of the damning allegations against them. Similarly, the buyers of the listed properties despite being served with applications elected not to answer the allegations against their willing involvement in the purchase of the pieces of land. They instead elected to raise technical points of the application.
“The technical points they raised have failed leaving the merits of the application uncontroverted. There are therefore no factual disputes on how the plots were illegally sold and bought”, concluded Justice Moroka.