Saturday, July 11, 2020

Kgori capital ordered to pay back P10 million NPF ill gotten gains

The Lobatse High Court has ordered Kgori Capital and its Directors to reimburse government more than P10 million that it earned unlawfully from the National Petroleum Fund (NPF).

This was after the presiding judge, Justice Godfrey Nthomiwa found that the asset management company was in breach of Section 39 of the Proceeds and Instrument of Crime Act (PICA) and section 33 of the Corruption and Economic Crime (CECA).

Justice Nthomiwa said, “In my judgement therefore I’m satisfied on a balance of probabilities that the Respondent Company (Kgori Capital) and its Directors cheated public revenue contrary to section 33 of the Corruption and Economic Crime (CECA); obtained money by false pretence contrary to section 308 of the Penal Code, laundered money contrary to section 47 of Proceeds and Instrument of Crime Act (PICA).”

The matter arises from the money laundering case in which the Directorate of Public Prosecutions (DPP) accused Kgori Capital of benefiting unlawfully from questionable NPF agreements.

The company was last year put under a restraining order for an amount in the sum of P10 million by the Lobatse High Court.

Handing down judgment last week, Justice Nthomiwa found that Kgori Capital and its directors among them Sarifa Noor and Alfonse Nzinge and former director Bakang Seretse “benefitted to the value of P10, 525, 786.67.”

Kgori Capital and its directors were ordered to pay the Government a “penalty equal to the benefits as assessed” and should also “pay penalty so determined joint and severally, the one paying the other to be absolved.”

Justice Nthomiwa also ordered that “the restrained property being the sum of P9,081,382.15 standing to the credit of Call Account No. 9060001490058 held with Stanbic Botswana Bank (Pty) Limited be paid over to the Confiscated Asset Trust Fund towards partial satisfaction of the Civil Penalty Order.”

The judge found that the Kgori Capital did not have any agreement with the Botswana Government over any work involving the NPF. “The contract that existed was between Basis Point and the Government and it was for the provision of consultancy services.” Nthomiwa said “that agreement allowed Basis Point to engage sub-contractors which it did and once such sub-contractor was Kgori Capital.” He said in addition and in terms of the agreement, “the Consultant, alone, shall be liable for payment to such sub-contractors for everything due to it in so far as any payments are due to it.”

 “This agreement closes any suggestion that the parties may have had another agreement in mind for financing management of services,” said Nthomiwa.

He added that “Now if the Consultancy Agreement recognised that Management fees were to be separately negotiated then the assumption here would have been that the negotiations had to take place between the two contracting parties.”

 “It only had to rely on for Basis Point for work and payment. It therefore could not directly debit the National Petroleum Fund for its expenses,” he said.

He said it is clear that Kgori Capital had no contractual relationship with the Botswana Government that entitled it to management fees from NPF.

“It follows that if they had any duty and obligations or rights to receive payment, such duties, obligations and rights only accrued to them as a subcontractor to Basis Points Capital,” the judge noted.

He said Kgori Capital was accused of dealing with monies that it credited to its own account from the NPF in the various transactions of paying and engaging in the transactions that involved property that is a proceed of money laundering.

Thus, he said Kgori Capital “benefitted unlawfully from the National Petroleum Fund and has accordingly benefited from serious crime related activities.”

Nthomiwa added that “thus a serious crime related activity crime was committed and the Respondent (Kgori Capital) derived a benefit from a serious crime related activity.”

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Sunday Standard July 5 – 11

Digital copy of Sunday Standard issue of July 5 - 11, 2020.