Former Botswana Public Officers Pension Fund CEO, Boitumelo Molefe, was subjected to intense cross-examination when she gave evidence in the corruption case of Carter Morupisi. The intensity was meant to poke holes in her testimony and weaken the state’s case but from what the judgement says, such effort failed.
Under Lesedi Moakofhi, Molefe’s predecessor, BPOPF had signed a lucrative contract with Capital Management Botswana in terms of which the latter was to manage part of the Funds money. Way after Moakofhi had left BPOPF, Molefe received a tip-off in the form of a letter from Bakang Seretse, the Managing Director of Kgori Capital. Away from this case, Seretse has his own colourful if controversial story involving huge sums of money. It is easy to tell why, as an asset manager, he would have taken interest in the affairs of a competitor.
Seretse’s letter informed Molefe that Morupisi, who was the Board of Trustees Chairperson, had beneficial interest in CMB. In terms of corporate governance processes that companies observe, Morupisi was supposed to have declared such interest to the Board. Following such declaration, he was also supposed to recuse himself from meetings in which the board dealt with issues relating to CMB. As it happened, not only had Morupisi not declared such interest to the Board, he had also personally signed the CMB contract on behalf of BPOPF.
After receiving this intelligence, Molefe tabled the issue at a Board meeting – which ended up resolving to report the matter to the Directorate on Corruption and Economic Crime. Naturally, when the matter ended up at the High Court, the prosecution called Molefe as a witness. Morupisi’s lawyer subjected her to what the judgement determined to be “lengthy” cross-examination.
“This witness was cross-examined at length but she stood her ground,” says Justice Chris Gabanagae in reference to how Molefe acquitted herself in the witness box.
Molefe headlines a list of witnesses who obviously impressed the judge, who, in his judgement, uses about similar words to convey such impression.
The second witness to stand his ground was Allen Keitseng, a lecturer at the Molepolole College of Education who, as representative of the Tertiary and Allied Workers Union, became the Chairperson of the Financial Investment Committee of the BPOPF Board. It was Keitseng who presented a report to the Board in terms of which the latter was informed that CMB had met all but one requirement.
At this point, the manual workers union was waging concerted legal campaign through the Collins Chilisa Consultants, a Gaborone law firm, to get representation on the BPOPF Board. Thus it was that Mboki Chilisa, a partner at the firm, obtained a court order from Justice Motswagole on behalf of the union. In terms of such order, activities of the BPOPF Board were suspended until the union was represented at its meetings.
Keitseng told the court that this court order was made while the CMB matter was still pending. In acknowledgement of the supremacy of the judiciary over the Board, the order necessarily meant that the whole process had to be stalled. Gabanagae found that, like Molefe who had testified earlier, “this witness stood his ground under vigorous cross-examination.”
Chilisa, the lawyer who had secured the court on behalf of the manual workers union, did himself take the stand. On account of not only knowing the rules of the game but playing that game exceptionally well as his client roster and litigation profile show, Chilisa was in familiar territory. He appears to have impressed the judge the most.
“This witness stood his ground under vigorous cross-examination and was emphatic and unshakeable as to when the court order was finally complied with,” the judgement says.
Another lawyer who took the stand and made as good an impression on the judge was Musa Nleya who at the time of this unusual intrigue was BPOPF’s Legal Services Manager and Board Secretary. The position that Nleya held necessarily meant that in as far as provision of legal opinion internally was concerned, he had to have the final say because he was the only lawyer attending Board meetings. Nleya told the court that he advised his boss, former BPOPF CEO, Lesedi Moakofi, against signing of the contract on account of the legal kinks that still had to be worked out. His testimony was that in rejecting his advice, Moakofhi explained that “she did not want to be accused of not implementing Board resolutions like him.” The subsequent implementation opened a can of worms.
“This witness was not shaken during cross-examination and I find him to be a credible witness,” the judgement says of Nleya who, as a lawyer, had the same advantage as Chilisa.
The evidence of Moemedi Malinda, then BPOPF’s Investment Portfolio Director, helped the state’s case in another crucial way. The latter, who is now BPOPF CEO, was responsible for the actual implementation of Board decisions. He told the court that on the very day (November 11, 2014) that the Board was not operational (which, for his particular role meant that there was no decision to implement), “the then Acting CEO, Ms. Lesedi Moakofhi, organised the signing ceremony of the en commandante agreement” and that Morupisi attended that ceremony.
The latter’s attendance of this ceremony was a point of contention because while he denied that he did, two witnesses testified otherwise. The other witness to confirm Morupisi’s attendance was Nleya, who had advised against the signing but was overruled by Moakofhi.
Crucially, the defence didn’t cross-examine both Nleya and Malinda on Morupisi’s presence or absence at the signing ceremony. Gabanagae’s judgement shows that this allowed the state to easily put points on the scoreboard. As regards Malinda, the judgement says that “failure to cross-examine a witness leaves the evidence of the witness uncontroverted and thus intact” and of Nleya it says that “during cross-examination by Defence Counsel Basimane Mogopa, the fact that Morupisi was present at the signing ceremony was not disputed.”
The latter issue is interesting in another dimension and could possibly indict western culture. In a world suffused with cellphone paparazzi and for an event that important, it is likely that there may be photographs somewhere of a signing ceremony that Morupisi says he didn’t attend. The legal plot twist will come if such photographs pop up out of nowhere – and no punitive action is taken against Morupisi. The former Permanent Secretary to the President didn’t testify under oath, which means that he can’t be held liable for untruths in his testimony. This is in line with Roman-Dutch law which Botswana adopted from the colonial government.