Among the many issues that two National Petroleum Fund litigants will have to contend with when their case comes before the Court of Appeal is an assertion in Justice Motumise’s judgement that the two people who signed a contract on behalf of theDirectorate of the Intelligence and Security Services (DISS) actually don’t exist.
The litigants in question are Bakang Seretse and Kenneth Kerekang who just lost a case (and property) courtesy of the Gaborone High Court. On account of such loss, the two men will forfeit property worth millions of pula. Motumise’s conviction is that the property was bought with money from the NPF – which Kerekang oversaw as Director of the Department of Energy. It was on the basis of Kerekang’s instructions that P60 million was transferred from the NPF to the bank account of Basis Points, an investment company owned by Seretse. Officially, this money was to buy oil stock for Botswana Oil and Seretse’s company was to facilitate this transaction. Four months later, Seretse bought Kerekang a plot in Gaborone west for P6 million. This plot is on the list of property that has been forfeited to the state.
In their defence, the defendants asserted that the money in question was payment (“mobilisation fees”) for consultancy work that Basis Points had done for DISS. As stated in its name, the Basis Points-DISS contract was for the company “To Undertake a Consultancy to Review Petroleum Products, Policies and Strategies with a View to Develop and Implement a Long-term Strategies to Address the Identified Gaps.”
In addressing himself to this issue, Motumise found that this contract was fraudulent for a number of reasons that he enumerates in his judgement.
Firstly, the letters of offer and acceptance are not on the record and after the request for proposal (RFP) letter from DISS, there was no follow-up letter appointing Basis Points. Secondly, while the RFP notified Basis Points that DISS was “considering [directly] appointing [you] as service providers”, the contract’s preamble instead says that tenders had been invited.
“The same tender could not be competitive and made directly at the same time,” Motumise’s judgement says.
Thirdly, while a letter from Basis Points estimated the consultancy contract to cost P450 million with an estimated P67 million as the mobilisation fee, “there is no document from DISS accepting the mobilisation fees. The agreement itself and the RFP do not provide for mobilisation costs or any expenditure of that nature.” Fourth, there is no evidence that DISS had been authorised to undertake project. Fifth, down the road, the purpose for which the funds had been sourced and was changed from “procurement of oil stock” to “skills transfer in the Department of Energy.” Sixth, while Basis Points issued a P67.5 million invoice to DISS for “mobilisation fees, consultancy to review petroleum products, policies and strategies”, the judge found that the contract as well as the RFP and terms of reference, did not mention any mobilisation fees.
“There is also no evidence of what was actually done, if anything, by way of mobilisation,” the judgement says.
Seventh, Kgomotso Abi, then Permanent secretary in the Ministry of Mineral Resources, Green Technology and Energy Security, said that he knew nothing of the contract. Contrary to what the name of the Basis Points contract states, Abi said that the Department of Energy had already adopted and implemented policies and strategies to cover gaps in the energy sector, such as the Draft Energy Policy and the Draft Oil and Gas Sector Strategy. On the basis of the latter, Motumise found that “there were no gaps in the sector calling for the replication of the existing infrastructure, strategies and polices by the DISS, which matters were not part of its mandate in the first place.”
Eighth, apparently, Basis Points and the Department of Energy already had a contract which had commenced a year earlier – December 2015. It emerged that the one involving DISS was a replication of the latter. While both contracts were “similar in scope and all material aspects”, the 2015 contract “was for the modest P16 680 045 and not the whopping P450 million of the alleged new contract.”
Ninth, Bantsi Regoeng, an engineer responsible for energy and gas projects in the Department of Energy, and a senior executive secretary at the Ministry who handled confidential correspondence, corroborated what Abi had stated. The latter, whose version of events was in turn corroborated by the Ministry’s Principal Records Manager, said that she had never seen any confidential correspondence from DISS in relation to the matter in question.
Motumise: “The entire correspondence purportedly emanating from the DISS and annexed to Mr. Seretse’s answering affidavit, was never received at the Ministry and therefore, it never existed.”
Tenth, Leonard Mbakile, a DISS Records Manager, disputed the authenticity of letters that Seretse had annexed to his affidavit and said were of DISS origin.
“They did not have the names of the author, and were contrary to the DIS referencing and classification system. Consequently, they were not authentic. All such letters and any files associated with them, did not exist in the DISS records. It was standard procedure at DISS, on receipt of external correspondence, to date-stamp, file and give it a folio number before submitting it for action. All such correspondences were not in the DISS records,” the judgement says.
Eleventh, another DISS officer, Moipedi Nkoane, who is the Director of Finance, said that no invoice was ever received from Basis Points for mobilisation fees or any related claims.
Twelfth, Tshegofatso Dioka, DISS’ Director of Corporate Services, told the court that the two officers who allegedly signed the contract on DISS’ behalf, Tshepo Sebego and Potlako Tabologang, were actually not DISS employees. For that reason, she asserted, they could never have signed the contract on behalf of DISS. The latter evidence was corroborated by that of Boikhutso Shawe, a Principal Registration Clerk in the Ministry of Nationality, Immigration and Gender Affairs. Shawe’s testimony was that the names of Tshepo Sebego and Potlako Tabologang don’t appear in the National Information System of the Department of Civil and National Registration.
“On the basis of the foregoing, the DISS contract has, on the balance, been shown to be a simulated transaction, a fraudulent document designed to deceive,” Motumise’s judgement says.