Francistown High Court on Wednesday ordered four former employees of the Department of Lands who had formed themselves into a criminal syndicate that sold land to scores of complicit buyers within Francistown and Kasane to pay Botswana Government P700 000 each.
The scores of complicit buyers in the land scam have forfeited all their properties to the state subject to the restraining order of September 17, 2017 which interdicted the buyers from disposing of the properties pending final determination of the application before the court.
The four former employees of the Department of Lands in the case are Priscilla Ursula Mokgokong, Julius Selemogwe, Reuben Tshule and Terrence Modikwe.
Delivering the devastating 88 page judgment, Francistown High Court judge, Justice Lot Moroka held that on the evidence presented, which virtually went uncontroverted, the four formed themselves into a criminal syndicate which existed solely for the purpose of illegally selling state land to buyers who themselves were willing participants to the unlawful purchases of land.
The presiding judge declared the “buyers are as culpable as the sellers. Neither the buyers nor the sellers have advantaged this court with information in determining how the civil penalty order will impact on them. I will therefore for purposes of assessment of the benefit rely solely on evidence before me”.
Judge Moroka explained that a civil penalty order targets the benefits derived from serious crime as opposed to a forfeiture order which targets the instruments and proceeds of crime.
The purpose of a civil penalty is to take away from the criminal the known benefits of crime.
According to the presiding judge, it is a precondition or jurisdictional fact for the grant of a civil penalty order that a respondent has benefited from serious crime. Part of the rational for taking the benefits of crime out of the hands of criminals is to restore equilibrium of good values of good governance.
“If left in the hands of criminal syndicates, the proceeds of crime become a war-chest from which criminal syndicates may buy influence. The dirty money may be laundered as party political funding and in the process capture state itself. A financially strong criminal is a threat to the security of any nation. The aim is to prevent the laundering of the money into legitimate business concerns later”, pronounced Justice Moroka.
The judge held that the buyers benefited properties while the sellers benefited money. The assessment of the benefits of the buyers are plain and simple as the properties are known.
Justice Moroka observed that many questions arise in dealing with persons who corruptly bought immovable property such as land. Should development if any, by the criminal effected on the land be taken into account? Why not legitimize the sale by ordering them to pay to the government the price of the land? Is an order for the seizure of land not too harsh?
Answering the nagging questions, Justice Moroka said “if development of the plot by the criminal becomes a bar to its seizure, then crime would be rewarding and the very purpose of the Proceeds and Instrument of Crime Act (PICA) would be defeated.
“Leaving the land in the hands of the criminal participant and asking them to pay its actual price would be judicial validation of a criminal activity. It will serve as an incentive for illegal acquisition of land. Law abiding citizens who have been on the waiting list for over ten years would see no value in respecting the law. As a result, the unintended consequence of such a court order would be to encourage lawlessness. General deterrence is also an objective of a civil penalty order”.
Sending a strong a deterrent message to potential criminal syndicates, Justice Moroka held that the illegally acquired plots must revert to the state and as far as the harshness of the civil penalty order is concerned the courts elsewhere have spoken on this.
“The rationale for the civil penalty order is to deprive offenders of the full extent of the benefit they have received from the commission of the offences. A civil penalty has the effect of a civil judgment. Armed with such an order the State may pursue other avenues to recover these monies, including instituting sequestration proceedings against the respondents, which if successful would entitle the Receiver to investigate whatever interests the respondents may have in any other entity with a view to recovering these debts. Alternatively, it could attempt to seek payment from the assets held by those entities themselves. These are not matters that this court need concern itself with at this stage, or that stand in the way of the grant of a confiscation order,” said Justice Moroka.
The judge said organized crime, particularly involving public officials is like cancer. It eats the fabric of society in a multifaceted way. It fleeces the national fiscus of the much needed revenue as in this case; it corrupts governance system rendering governance ineffectual.
“If left unchecked, it imperils the collective destiny of all citizens of the country. If allowed to gain traction, corruption becomes the norm to the detriment of the economic and political stability of the country,” emphasized Justice Moroka.
The presiding judge said the result of land theft is that, government system of land allocation were declared nugatory. Persons who have been in the waiting list as far back as 1998 were skipped by persons willing to corruptly buy land.
“For the buyers, the plots themselves constitute benefits. They must be taken back to government with or without developments. As for the sellers the assessment entails the computation of the money they received”, said the presiding judge.
Justice Moroka explained that all respondents except two elected not to answer the allegations made against them by the applicant in the various affidavits filed in support of the application. They rather elected to defeat the application by raising an assortment of points in law.
The judge warned that a party who elects not to file an answering affidavit and relies instead on the points of law to defeat the applicant’s case runs the risk of having the application unopposed on the merits. In the event that the points of law do not succeed as is the case in this case, the applicant’s case remains uncontroverted.
“Given the high stakes in this case, potentially the loss of valuable properties, one would have thought that the concerned respondents would have offered explanations as to how they came to own the various properties. In the absence of any gainsaying evidence I find it as a fact supported by evidence that all but two of the properties are proceeds of serious crime having been sold to the various buyers with their collusion to unlawfully cheat and deprive the State of the concerned pieces of land”, concluded Justice Moroka.
Of all the respondents only three were saved by the bell, namely; Botswana Building Society (BBS), Sylivia Onkgomoditse Chapi and Mokuru Buzwani .