Saturday, October 31, 2020

Marsland looks for legal loopholes to evade extradition

Capital Management Botswana (CMB) majority shareholder Timothy Marsland is resisting Botswana’s decision to extradite him to answer for allegedly misappropriating P500 million of pensioners money.

Marsland who is represented by Kanjabanga and Associates, raises a new argument in his latest application before Lobatse High Court judge Justice Jenifer Dube.

He states in his application that the extradition process initiated under the now defunct 1969 Extradition Treaty between Botswana and South Africa be reviewed and set aside.

The lawyers also state that the warrant of apprehension of a person without a warrant in terms of section 37(1) of the Criminal Procedure and Evidence Proclamation (Cap08:02) dated 1st March be set aside. He also seeks an order directing that warrant of apprehension of a person arrested without a warrant in terms of section 31(1) of the act in respect of the charge of attempt to obtain by false pretenses be set aside.

Marsland also prays that the court issues an order that the administrative act of seeking the provisional arrest of his arrest be reviewed, stayed and set aside for inaction and delay by the State in initiating his extradition and notifying him of his charges in terms of section 10 2(b) of the constitution of Botswana.

Replying, the State argued that the matter was not urgent and does not deserve to be heard on urgency. The State further argued that Marsland’s application be dismissed as he had failed to mention the prejudice he would suffer and why he cannot be afforded substantial redress at a hearing in due course.

“If the application is being brought under order 61 of the High Court rules at it purports to have been, then such procedure is improper in that the application seeks to review the extradition process,” the State argued.

It further states that “Order 61 is preemptory in its terms , if the facts indicate that the application is to have the decision or proceedings of the bodies referred to corrected or set aside , the only procedure that may be invoked is that set out in order 61. Review proceedings cannot be made on urgency in terms of order 6.”

The State further stated that a wrong procedure has been adopted in this matter as the record of proceedings is before the High Court.

Marsland through the CMB is accused of misappropriating of about P500 million belonging to the Botswana Public Officers Pension Fund (BPOPF).

CMB, an asset management firm now under liquidation, was contracted by the BPOPF in 2014 to manage an initial P500 million investment mandate in private, unlisted equity. The asset manager and the pension fund fell out in late 2017 with allegations of misappropriation, at which point CMB had reportedly being given P477 million to manage.

Reports indicate that by South African law, the Justice Minister has the final say on whether extradition can occur.

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