Botswana: Mokgethi, DPP Bosses Face LSB

2 September 2021

The investigative unit of the Law Society of Botswana (LSB) -the Disciplinary Committee, is currently seized with the case involving Annah Mokgethi -the Minister for Nationality, Immigration and Gender, following a complaint lodged against her.

LSB Chairman, Tshekiso Tshekiso was quick to explain that the matter did not come to their attention because of a recent Court of Appeal judgment, where Mokgethi was found to failed to properly account for the estate of the late Abdul Joseph amounting to over P20 million. The Court of Appeal (CoA) recently dismissed Mokgethi's application to reverse a High Court decision ordering her to give proper accounting records to what happened to the late Abdul Joseph's multimillion pula estate. Followign the pasing of Joseph, Mokgethi was issued with a letter of administration of his estate on July 7, 2010. A marathon legal battle ensued between Mokgethi and Joseph's granddaughter Dawn Masenya over the administration of the estate with the latter challenging a Will left by the deceased, and questioning some undisclosed transactions.

The final liquidation and distribution account reported the estate as being valued at P26, 199,724.03 down from P31, 760,259.13 listed in the initial inventory. The High Court had ruled that since there was an interdict of the distribution, the estate should still be intact, subject to legitimate accretion or diminution, in the hands of and under the stewardship of the executrix-Mokgethi. The initial inventory filed by Mokgethi was found to be materially incomplete, and the final liquidation account contained significant deficiencies. Certain estate assets, including a borehole, livestock, and shares, were not reflected. Dividends were omitted, although the estate held a wide share portfolio valued at some P20 million, and rentals received after the passing of Joseph remained unaccounted for. "A known sale of Barclays Bank shares of more than P2 million has not been disclosed, and nor have those funds been subsequently accounted for. There is no evidence that the estate has paid income tax or even rendered tax returns for any of the years during which it has been under administration. In short, there is every indication that a number of breaches of the Administration of Estates Act may have taken place," CoA Judge President Ian Kirby pronounced on August 6, 2021 , dismissing Mokgethi's appeal and confirming High court order of Justice Godfrey Nthomiwa. Justice Kirby ordered that the order be complied with within 30 court days.

"The judgments on their own raise serious issues of ethical concern as you say. However, to the Law Society, the conclusions in the judgments are allegations that the Law Society must investigate, not to accept them at face value. The DC will carry out its investigation as required by the Legal Practitioners Act to determine the substance or otherwise of the allegations against her (Mokgethi). It is after all the due process is followed that a determination will be made as to whether any action will be taken or not," said Tshekiso.

Similarly, with referrals concerning the conduct of Directorate of Public Prosecutions (DPP) senior officials, the judgment of the High Court will be placed before the DC for investigation, Tshekiso elaborated. The investigation will entail assessment of the judgement, and any other material as may be relevant and material, and a determination by the DC will be made whether there is a need to call DPP Director Stephen Tiroyakgosi to answer or not. If the DC consider that there is a need to answer, they afford him an opportunity to make representations before making a determination of his guilt or otherwise, he said.

"All due process will be followed in both instances. I speak in general terms because both matters have the potential to serve before the LSB Council for determination. I can therefore not pre - judge any of the matters until all the processes under the LPA are concluded," said Tshekiso.

Butterfly free!

High Court Judge Dr Zein Kebonang, last week discharged and acquitted spy agent Welheminah Maswabi codenamed Butterfly from charges of possession of unexplained property, abuse of office and false declaration of a passport. Another charge of financing terrorism was earlier withdrawn by the state.

Butterfly was implicated alongside former president Ian Khama, former Directorate of Intelligence and Security Services (DIS) Isaac Kgosi and South African businesswoman Bridgette Motsepe-Radebe for allegedly stealing P100 billion from Bank of Botswana.'Butterfly' was arrested on October 17, 2019 in a dramatic fashion and arraigned before the Broadhurst Magistrate's court under unprecedented heavy escort. She spent a month in jail after the Directorate of Public Prosecutions (DPP) argued that she posed a significant threat to the state, and therefore deserved to remain in custody.

In a review application filed by Maswabi's lawyers, they argued that there is no evidence before the DPP that could have justified a decision to prosecute her. Through her attorney Unoda Mack, Maswabi submitted that the entire case against her was a fabrication of evidence by the Botswana government/ state -the DPP, and others who were parties to the fabrication.

Passing judgment on the review application, Judge Dr Kebonang concluded that the allegations and accusations against Butterfly were fabricated and outright false. He also declared that the accusations contained in the opposing affidavit of Directorate on Corruption and Economic Crime (DCEC) investigator Jako Hubona to the effect that Maswabi is a signatory to various bank accounts held in various South African commercial banks under companies called Blue Files and Fire Files with a total balance in excess of US$10 billion were fabricated and are outright false as such accounts do not exist and the said companies are also non-existent.

Judge Dr Kebonang also ordered that the Director of Public Prosecutions Stephen Tiroyakgosi "is referred to the President of Botswana as the appointing authority to consider his removal from office of the DPP... ". The judge also ordered that Tiroyakgosi be referred to the Law Society of Botswana (LSB) for investigation and appropriate sanction. "The first respondent is also referred to the Attorney General as his line supervisor for investigation and possible prosecution," Kebonang ordered.

Deputy DPP boss, attorney Priscilla Israel has also referred to the LSB for investigation and appropriate sanction, while Investigator Hubona has been referred to the Commissioner of Police for prosecution for perjury and to the DCEC Director General as his line supervisor for disciplinary action.

Further, Judge Dr Kebonang directed the Registrar of the High Court to submit a copy of this judgment to President Mokgweetsi Masisi, Director General of the DCEC, the chairperson of the LSB, the Permanent Secretary to the President, the Commissioner of Police and the Attorney General for appropriate remedial action. The respondents were also ordered to pay the costs of the lawsuit.

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