South African-based billionaire Simbi Phiri – owner of Khato Civils – says he feels vindicated by a High Court ruling that gave him access to his P24 million that was frozen on suspicions that it could have been proceeds of crime since part of it was not declared at the border. Despite repeated protestations that his money was clean, the Directorate on Corruption and Economic Crime (DCEC) insisted that the accounts be kept frozen – from more than a year ago – on grounds that they were investigating possible money laundering crimes. Phiri declared on Friday: “This judgement has vindicated me, my companies and my fellow directors. We have been accused and called various names including smear campaign in the media where it was reported that I was found with money in the boot of my car. I have been accused of bringing in money illegally to Botswana and an impression created that this was money generated from the proceeds of crime. I have worked very hard in order to develop my companies and not even a single day where I obtained money through illegal means. I run a very professional establishment and nothing will stop me from fulfilling my dreams. I have maintained from the beginning that there was absolutely no basis for DCEC to investigate me and my companies, I am a legitimate businessman and no one is going to deter me from doing work in this continent and anywhere in the world for that matter. Some people have a tendency of thinking that a black businessman cannot be successful and I am determined to prove them wrong. The outcome of this case has once again proven that there was absolutely no basis for the actions taken by DCEC but just a smear campaign fuelled by people who want to see me failing. In the first place they wanted to advertise in newspapers both in South African and Botswana that they are looking for me though they knew exactly where I stay in South Africa. This action on its own proves that there was never any interest in dealing with my case fairly but just to tarnish my personal image and my companies.” Phiri is construction industry magnate who owns Khato Civils (Pty) Ltd and South Zambezi (Pty) Ltd — among Africa’s leading construction, engineering and infrastructure development companies.
Justice Michael Leburu ruled at the Lobatse High court on Thursday that: “Äfter a careful analysis of the whole conspectus of the competing interest herein, it will be in the interest of justice that the restrained accounts be set free; as I hereby order, it is accordingly ordered as follows: the restraining order that froze the Applicant’s bank accounts held at Stanbic Bank Botswana is discharged; the 1st Respondent to bear costs of the application on ordinary scale,” ruled Justice Leburu. In coming to this ruling, Justice Leburu noted that the applicants have complained about the indeterminate and prolonged investigations. “It has been over a year since investigations herein commenced. Up to now, the court has not been informed as to when such investigations will be concluded. During these investigations, the applicants have not been interviewed about the restrained funds. Although the test for reasonable delay should not be unduly stratified and preordained, in this case there has been unreasonable delay. How do you freeze a person’s bank account for over a year and then not interview them on the funds so restrained? I ask,” declaring his court’s understanding of various methods of investigating money laundering cases. “The Applicants, since the imposition of the restraint order, have no doubt suffered financial prejudice. They have not been able to participate meaningfully in their line of business. The 1st applicant has not been able to develop and grow due to unavailability of adequate funds. The applicants have also suffered invasive prejudice from negative media publicity as a result of the restraint order, with such media publications accusing them of money laundering without proof thereof,” he said. Justice Leburu acknowledged a shift in the respondent’s case where they were now confirming that the money was obtained from an authorised dealer. “The 1st Respondent has failed to take the court into its confidence by explaining how far the investigation process has gone and any difficulties encountered. It has also failed to inform the court as to when the investigations are likely to be completed. Despite elapse of over a year, the 2nd applicant has not been interviewed about the funds in question and this goes to show how half-hearted and lopsided the process has been. No cogent reasons for the delay have been placed before the court. It is not in the interest of justice that the applicants should be restrained for an indefinite period, merely because of ongoing and indeterminate investigations. “After an evaluation of all the above factors what is outstanding is for the court to strike a happy medium and then make a value judgement in making an appropriate decision; bearing in mind that courts have an overriding duty to promote justice and prevent injustice,” ruled Justice Leburu.
Ready to deliver projects
An overjoyed Phiri said he was ready to continue with his plans of developing his Botswana business. “From the onset, I made a decision to invest in Botswana and already have equipment worth over P60m. I have already bought land in order to construct head offices for our Botswana operations and plans to start with construction are now at an advanced stage. Botswana is a very strategic country for us and we intend to expand our operations there. Botswana has a very investor friendly environment and this is a country where my mother comes from and I have my other family members,” he said. He said he will not be surprised if the DCEC was to appeal the matter again as they have constantly been doing, but vowed to continue fighting to clear his name. “Remember they have lost four times and unfortunately the DCEC is wasting tax payers’ money and fighting cases in order to achieve personal goals of some individuals. … The judge has once again rules in my favour and has ordered DCEC to pay my legal costs. I will fight for my legal and constitutional rights no matter how much money I must spend in clearing my name,” he said. He has many lessons to draw from this experience, key among which is that as a black person he has to work extra hard to survive in any business. “People can tarnish your image and reputation for no apparent reason but just driven by jealousy and greed. Actually this case has made me very strong and I have learned a lot that the more you are successful the more enemies you create. I remain committed to clean governance principles and determined to build and expand my operation throughout the continent. I couldn’t have survived this onslaught from DCEC if I didn’t have support from my wife, family and all my relatives and friends including staff members in my companies,” he said.
Source of case
Khato Civils and Phiri were 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 in one instance and the declaration of USD300 000.00 instead of USD500 000.00 in another instance.