The Court of Appeal has set aside a ruling by High Court judge, Justice Dr. Zein Kebonang, that three civil servants who played a prominent role in the Butterfly criminal case should be referred to their bosses (and regulatory bodies) for disciplinary action.
When he discharged and acquitted Wilheminah “Butterfly” Maswabi last year, Justice Kebonang also determined that the Director General of the Directorate of Public Prosecutions, Stephen Tiroyakgosi, then DPP prosecutor Priscilla Israel, and Directorate on Corruption and Economic Crime investigator Jako Hubona, had acted unethically.
Resultantly, the judge ruled that Tiroyakgosi be referred to President Mokgweetsi Masisi as the appointing authority to consider his removal from office, to the Attorney General “as his line supervisor for investigation and possible prosecution” as well as to the Law Society of Botswana (LSB) for investigation and appropriate sanction. Israel was also referred to the LSB for similar action while Hubona was referred to the Commissioner of Police for prosecution for perjury and to the DCEC Director General as his line supervisor for disciplinary action.
In his judgement, Zein had found that Hubona fabricated evidence against Maswabi, who was alleged to have stolen P100 billion from the Bank of Botswana – which itself refuted the allegation of ever having lost such money. The case against Maswabi was built on Hubona’s allegations and prosecuted by Tiroyakgosi and Israel as state lawyers.
DPP appealed Kebonang’s judgement and on Monday, the Court of Appeal reversed it. A judgement written by Judge President Tebogo Tau says that Maswabi’s lawyer, Unoda Mack, had himself conceded that it was improper for the Court to issue such an order without affording the parties an opportunity to address it where such issue was raised. Consequently, Tau issued an order that “the referral order is set aside.”
Sunday Standard has turned up Confidential correspondence between Justice Kebonang and the suspended Directorate on Corruption and economic Crime (DCEC) Director General Tymon Katlholo, prior to the judgement, suggesting deep seated animosity between the judge and DCEC officers Priscilla Israel and Jako Hubona.
About three weeks before his judgment on the controversial butterfly case, Justice Kebonang met Katlholo where he lodged a verbal complaint against the DCEC Deputy Director General Priscilla Israel.
In a follow-up to the meeting, Justice Kebonang on 10th August 2021 wrote to Katlholo and copied the letter to the Permanent Secretary to the President, complaining about Israel’s “ professional misconduct.”
Justice Kebonang charged that Israel was using the media to attack him and members of his family. “ Mrs Israel does this maliciously with the deliberate intention of harming my name. In this regard my legal rights are fully reserved. Mrs Israel occupies a public office and so do I. Her conduct falls short of what is expected of those who occupy such offices. In the premises I wish to lay a formal complaint of her conduct to you as her superior and Head of the DCEC. I do so as I do not believe the DCEC has a policy of leaking information to the press or using the office to pursue personal vendettas of whatever kind. Given the seriousness of this matter, I have also taken the liberty to copy this letter to the Permanent Secretary to the President (PSP).”
Justice Kebonang complained that, “ my understanding is that matters dealt with by your office remain confidential and must be treated as such. Against this understanding, I was informed not by one but a few newspaper journalists that Mrs Israel had passed to them documents and information relating to a case previously before me of which I have long recused myself from and asked me to write a damning story attacking not only my person but members of my family. An aspect of the story was indeed published by Sunday Standard newspaper in their sister publication, The Telegraph.”
Justice Kebonang was referring to a story carried in the Telegraph newspaper, based on an affidavit deposed by Jako Hubona asking him to recuse himself from the Capital Management Botswana (CMB) case.
In the affidavit, Hubona asked Justice Kebonang to recuse himself from the case because, “ the evidence reveal that the applicants ( Timothy Marsland and Rapula Okaile of CMB) transferred the proceeds diverted from BOP bank account to Mr Sadique Kebonang ( Justice Zein Kebonang’s twin brother and sibling)’s personal bank account as follows;
“ On the 20th April 2017 an amount of BWP 75 000.00 referenced S Kebonang; On the 3rd July 2017 an amount of BWP 75 000.00 referenced S. Kebonang”.
Jako Hubona’s affidavit further states, “ the applicants transferred money to Mr Sadique Kebonang through Briscoe Attorneys’ Standard Chartered Bank number 0100175000901 as follows; On the 20th April 2017 an amount of BWP 250 000.00 referenced Camp Donation; On the 29th May 2017 an amount of BWP 250 000.00 referenced Camp Donation; On the 3rd July 2017 an amount of BWP 250 000.00 referenced Camp Donation3”
Jako Hubona’s affidavit further states that “ Evidence gathered established that following the diversion of funds to Briscoe Attorneys Mr Sadique Kebonang, further instructed the following; “ on the 17th May 2017, Briscoe Attorneys issued a cheque No 110951 in favour of Naledi Motors for sum BWP 455 000.00 in payment of a Mercedes Benz GLC 250 D chassis No. WDC2539092F247962 registration number B291 BEX. The motor vehicle was bought for Mrs Jeanette Mooketsi on the 17th May 2017. Mrs Jeanette Mooketsi of Omang number 200023808 in the mother to Mr Sadique Kebonang……. and Mr zein Kebonang.”
