State loses case against Guma's company
Acase which has been running for almost two years now against a company owned by Tati East Member of Parliament, Guma Moyo was finally put to rest last week.
In June 2014 the Directorate of Public Prosecutions (DPP), acting on behalf of the DCEC, filed an application for the bank accounts of Guma’s company, IRB Transport and those of his business associate Minister of Youth, Sports and Culture, Thapelo Olopeng, to be frozen. When he became Minister, Olopeng sold his shareholding in Executive Closets Lodge in Phase IV Gaborone to Guma. He was paid P3, 4 million through a cheque from IRB Transport, a company wholly-owned by Guma. It was this cheque that led to Olopeng being enjoined in the application for Guma’s accounts to be frozen.
Two months later, Village Chief Magistrate, Merafhe Taolo ordered DPP to complete the investigations into the matter in 60 days, failing which the case would elapse. On the eve of the deadline, DPP and DCEC rushed to the High Court on an urgency application saying there is reasonable belief or suspicion that the two (Guma’s business and Olopeng) have committed a serious offence and their accounts are instruments of proceeds of crime.
Justice Walia then issued an order that the company’s accounts be restrained saying the matter is urgent. He also ordered that funds in the account should not be taken until finalisation of the case.
But this week, Gaborone High Court Judge Singh Walia in his judgment said, “The courts would be committing a grave injustice if they were to make interim orders to deprive a person of any of his rights, constitutional or otherwise on the basis only of unsubstantiated threats or possibilities of some future unspecified criminal proceedings.”
He said the state had failed to take the court into confidence as to what offence, if any, the respondents are likely to be charged with.In the heads of arguments filed before Justice Walia, State lawyer, Enerst Mosate said the investigations were still ongoing and involve other countries. “The target here is not the person, but the property. Even if they are not charged the property maybe forfeited as it is believed to be proceeds of crime as the Act allows,” he said in the last court appearance.
“In the final result having carefully considered all material placed before me and having given the applicant the benefit of consideration of every possible factor which might inure to his benefit, I must conclude that the application is without merit,” said Justice Walia. He said the applicants decided to drag their feet and felt no need to expedite matters. “The applicant’s argument on the grant of a restraining order in this case, to facilitate investigation, is therefore without merit,” he said. Justice Walia further added, “On that score alone, the application is misconceived and stands to be dismissed. Any litigant seeking relief under a statute, must act in faithful compliance with the requirements of the State and satisfy all conditions precedent to the commencement of proceedings under the relevant provisions.” According to Justice Walia the delay in the matter was “an entirely impermissible violation of a person’s right to the enjoyment of his property.”
He added, “The delays in this case are quite inexplicable. The learned Magistrate had expressed serious concerns about the delays and hence a ceiling of 60 days on the validity of the final order. It is quite obvious that in that 60 day period, the applicant did nothing to either comply with the order, or charge the respondents.”“On the papers before me, no valid reason appears for the delayed investigations.
The only reason advanced is that the alleged criminal conduct involves investigations in other countries, including China and in the case of China, it is necessary to engage in mutual assistance,” said Justice Walia. Moses Kadye represented Moyo while Doctor Pusoentsi represented Minister Thapelo Olopeng.