Gaborone High Court Judge Godfrey Radijeng has condemned the incompetency of investigating officers tasked with investigating the P230 million National Petroleum Fund (NPF) case.
Faulted are the Ministry of Finance and Development Planning, that of Energy and Water Affairs and the Directorate of Intelligence and Security.
The judge revealed that the investigating officer Tsholofelo Bareetsi, the Minister responsible for NPF and acting Permanent Secretary Dr Obolokile Obakeng failed to provide crucial evidence to locate the missing money.
When delivering Judgment, Radijeng said the respondent (Bakang Seretse’s lawyer) has submitted that the affidavit of Bareetsi, impeaches the Minister, the Acting Permanent Secretary- Dr Obakeng and Kenneth Kerekang, for breach of statutory duty and not the persons interested in the properties, the subject of the application.
In their submissions Ngakaagae wanted the State to return Seretse’s property worth almost P82 million.
“There is no affidavit from the minister that he did not approve the disbursement of the NPF fund,” said Ngakaagae.
Judge Radijeng agrees with defence lawyer Kgosi Ngakaagae that the processes were flouted. The evidence before court shows that the amounts mentioned by the State to have been siphoned to Israeli companies were issued under the instruction of the Directorate of Intelligence and Security as it appears in a letter by Isaac Kgosi filed in the restrain proceedings.
Radijeng said the State cannot continue hiding behind the law to hold on to Seretse’s property.
“I am furthermore persuaded by the Respondents’ submission that there cannot be any referencing of willful violations of multiple statutes by the Respondents’ as interested parties, as contended by the Applicants, as they too were not privy to the approvals or processes noted herein’’ said Radijeng.
In the result, the unilateral withdrawal of the approval of variation by Dr. Obakeng was of no consequence as the horses had already bolted; the money had left the account, with the last trench having been disbursed on the 16 November 2017 and a payment already having been made to an Israeli company as disclosed by the Applicant (State).
Judge Radijeng said, in respect of the founding affidavit of the DPP, the deponent avers that a crime and its related activity must be proved to establish the probability of the property under restraint as proceeds of a serious crime related activity. The deponent avers that Khulaco Pty Ltd earned its keep lawfully and cannot be faulted. It submits that if the internal Government processes were breached they cannot be blamed on the Respondents.
According to court records, in respect of the affidavit of Investigating officer, Bareetsi, the deponent ‘notes’ the averments as regards the established procedures on disbursements from the NPF. He states that Kenneth Kerekang informed him that the Minister through the Permanent Secretary authorized the matter. The deponent avers that if processes of government were flouted, it is not the concern of the concerned parties, nor can this be classified as a crime.
It is on records that on the 10 August 2017as per state submissions the DIS requested that payment in the requested sum noted above, be made to Khulaco Pty Ltd. It is furthermore averred that consequent to the above, P230 000 000.00 was disbursed to Khulaco in three trenches; P80, 000 000.00 on the 28 August 2017, another P80 000 000.00 on the 18 September 2017 and a further P70 000 000.00 on the 16 November 2017.
“I take the view that the onus lies with the State to make its case on the facts and adduce evidence to support its conclusions. The respondents as interested parties do not have the onus unless an evidential onus is required of them, which in my view has not arisen on the facts” said Radijeng.
