The High Court has dealt a blow to businessman Bakang Seretse after it confirmed the restraining order granted to Directorate of Corruption and Economic Crime (DCEC) to freeze several of his accounts and properties while awaiting investigations on the money laundering case. Making the judgement on Friday, Justice Godfrey Radijeng said DCEC successfully argued its case. On the 13th of December 2017 DCEC obtained an ex-parte order against several properties and bank accounts held with different banks owned by Seretse as part of investigations on the alleged mismanagement of the National Petroleum Fund. DCEC argued that there was a breach of the NPF Order, the Public Finance Management Act and the Penal Code Sections 129 and 132. The applicant revealed that Director at the Department of Energy Affairs Kenneth Kerekang allegedly appointed Kgori (Pty) Ltd as fund managers in the face of an alleged existing contract with Department of Energy Affairs with Basis Points Capital (Pty) Ltd. Justice Radijeng said that this constitute evidence which viewed objectively may be reasonably be believed to constitute offences as foreshadowed in the Applicant’s founding affidavit. Radijeng said that the applicant has made their case clear and that the conduct of Seretse and or the entities that he represents maybe subject of one or more offences as set out by the state.
DCEC had argued that there have a conflict of interest as Seretse as Fund Manager at Kgori (Pty) Ltd as Director and shareholder and at the same time held shares at Khulaco (Pty) Ltd was the transactional partner for the money complained to be subject of proceeds of serious crime. Radijeng agreed with the state that the chain or trail of transactions that ensued from the disbursement of the P230 million to Khulaco (Pty) Ltd which did not have contract with government to transact with for purposes of the National Petroleum Fund and the unilateral authorisation of the funds by Kerekang may reasonably be believed to constitute offences contrary to the Public Finance Management Act and the Fund order (Statutory Instrument Act no.96, 2010). The P250 million, which was disbursed to a Khulaco (Pty) Ltd account at Capital Bank, was not approved by the National Petroleum Management Fund Committee and did not follow established procedure for disbursements and there was no tender for the project. Director of Department of Energy Affairs Kenneth Kerekang is said to have approved the P250 million requests by the DISS though he didn’t have the authority to do so as it lies with the Fund Management Committee.
In his argument against the restraining order against his client, Attorney Kgosietsile Ngaakaagae argued that DCEC is targeting a wrong person as the main actors in the money laundering case are Directorate of Intelligence and Security Services (DISS) Director General Isaac Kgosi and Permanent Secretary Mineral Resources, Green Technology and Energy Security Dr. Obolokile Obakeng. But Justice Radijeng insisted that the restraint proceedings are not as portrayed by the respondent. “The question in my view in restraint proceedings is not as portrayed by the respondent; that there must be elements of a crime established or the source of the funding and or actors in the trail of the funding be identified and charged or whether the funds were taken or moved lawfully as alleged by the respondent,” he said. In his view the question is one of the standard of proof or level of evaluation as required in such proceedings and that the applicant has set out a trail that the respondent has also sought to establish; the source of funding and the transactions that ensued.
In his affidavit Seretse has stated that the order instant was obtained through misinformation and misrepresentation of the facts. “I commence by stating that I am dumbstruck by the utmost lack of honesty and deliberate non-disclosure in the founding affidavit filed by the Applicant,” he stated in his affidavit. Radijeng dismissed that, saying there was no lack of honesty or deliberate non-disclosure as suggested by the respondent. “I say so considering the challenge of disclosure that the respondent has laid against the applicant. I am satisfied that the Applicant has answered the Respondent’s challenge in its replying affidavit,” he said. Justice Radijeng said Seretse failed to provide an answer or explanation as to the trail of payments that the basis of the application other than to repeat what was already established by the Applicant. He confirmed the interim order granted to the applicant on the 13th of December 2017 and ruled that the respondent pay the costs of the application.
It was not immediately clear whether Seretse will appeal the ruling.