The Court of Appeal has granted the Directorate of Public Prosecutions (DPP) the right to appeal a variation order that granted Khato Civils Botswana a partial access to its funds after the company’s accounts were frozen pending an investigation over suspicions of money laundering. The DPP had appealed Justice Michael Leburu’s ruling on February 28, 2017 that allowed the company to access the use of P500 000.00 per month until the end of June 2017. The company was also allowed to access a once-off payment of P500 000.00 to meet its legal expenses. DPP took the matter to the Court of Appeal after Justice Leburu had turned down their application for stay of execution pending appeal. In his ruling on May 9, 2017 Justice Isaac Lesetedi of the Court of Appeal allowed variation order appeal but turned down the application for stay of execution while directing the High Court to “ensure that in consideration of any further limited access under section 35 of the Act, it carries out a comprehensive analysis of all the relevant factors and on consideration not only of the affidavits, in the variation application but also in light of all matters appearing in the case as a whole.” In seeking a stay of execution the DPP argued that giving the company limited access to the funds will defeat the whole purpose of the restraining order in that the said funds (exhibits) will be dissipated and that the Applicant will suffer irreparable harm and prejudice. They also insisted that the sum allowed for reasonable legal expenses was not justified and further that the Respondent’s attorney had already been paid P120 375.10 on December 14, 2016. Khato Civils’ lawyer had opposed the stay application, insisting that the limited access will not defeat the purpose of restraining order because there shall remain a substantial portion of the restrained funds. The variation order has been given to last until the end of June 2017.
Justice Lesetedi declared this week that “since the variation order is coming up for review at the end of June 2017 which is only two months hence, it is necessary that the High Court should not extend the continued access without full enquiry into the matter and a detailed workout on the figures to ensure that whatever order is made does not render the merits of the appeal let alone the restraint orders against any of the Respondents nugatory without full and balanced analysis”. The case follows an investigation by the Directorate of Corruption of Economic Crime (DCEC) which culminated with them getting a Court of Appeal (CoA) order to have the company’s account (with about P24m) frozen while they investigated how the money was sourced. The company is owned by South African-based billionaire Simbi Phiri as majority shareholder and Ishmael Maposa as managing director. Khato Civils and Phiri are being investigated by DCEC for making various deposits at their various accounts at Stanbic Botswana with instances of under-declaration when the money was brought into Botswana. The under declaration related to the USD800 000.00 instead of USD886 000.00 and the USD300 000.00 instead of USD500 000.00 and hence the DCEC investigators have after an analysis of the accounts felt that a financial crime of money laundering and more have been and or are being committed. It is this matter that the state is still investigating. Phiri has always insisted that this matter was being pursued by people who are fighting him to block his companies from getting a Government tender they have pitched for.