After eight years of motion without movement, the Directorate of Public Prosecutions (DPP) has finally withdrawn criminal charges against two Gaborone businessmen for attempting to defraud the Citizen Entrepreneurial Development Agency (CEDA) of P1.6 million.
The case pitted the businessmen in question, Tshepo Makgalemele and Thulaganyo Boiditswe, against the old Directorate of Intelligence and Security Services (DISS) and its former Director General, Colonel Isaac Kgosi. Through their company, Kgang Tsa Rona, the two men were granted a P1.6 CEDA loan to open Botswana’s first and only franchise of Sparkling Auto Care Centre, a unique South African operation which combines car wash and valet with automotive body repair services. In an affidavit that he deposed to in 2017, Kgosi alleged that in their application, Makgalemele and Boiditswe provided a false copy of a tax invoice for the sum of P900 000 by “conniving” with some CEDA employees. Kgosi also alleged that the pair produced a forged letter purporting to be from the Sparkling headquarters in South Africa when that was not the case.
“I aver that there was no business which the plaintiffs had acquired through CEDA at the time of the arrest and detention. In actual fact, the CEDA loan was going to be used to purchase the franchise and set up the business,” Kgosi said in his affidavit.
The investigation and detention happened in 2012 but it was only in 2018 that the men were charged with fraud and interrogated by the Serious Crime Squad of the Botswana Police Service (BPS). Oddly, the CEDA employees that Kgosi alleged the suspects had connived with had themselves not been charged.
For their part, the accused claimed that the criminal investigation that led to the fraud charges had been trumped up in order to force them to withdraw a case in which they had sued the DISS (which arrested them) and BPS (which detained them). While the P18.6 million lawsuit failed, the fraud case stayed alive at the Village Magistrate Court in Gaborone. With little headway being made, the accused men’s lawyer, Lyndon Mothusi, made an application to Magistrate Jobbie Moilatshimo for the case to be dismissed, citing Section 10 of the constitution. The latter says that those charged with a criminal offence must be tried within a reasonable time. From what Sunday Standard understands, the Serious Crime Squad, which started investigating the case six years after the alleged offence had happened, failed to assemble the necessary evidence. Such failure denied DPP the opportunity to build the strong case it needed to move ahead with the prosecution.
DPP withdrew the case last Tuesday and eight years after it started, the case appears to be well and truly over. The withdrawal was done in terms of Section 150 (4) of the Criminal Procedure and Evidence Act which states that those who have been called upon to plead to any indictment shall be either acquitted or found guilty. If neither development occurs, the prosecution may withdraw the case and the accused person “shall be discharged without prejudice to his being charged again for the same offence.” In theory, the latter means that there is possibility that Makgalemele and Boiditswe can still be charged again. In reality, that is highly unlikely because the prosecution wasn’t able to build a solid case over a period of eight years.
The matter started at a time that DISS was a law unto itself. Kgosi has since been fired and while some complain that the spy agency has not changed its ways, it is certainly not the menace it was between 2008 and 2018.
