Legal conundrum ensues in Seretse’s P42m case

The marathon case involving businessman Bakang Seretse has taken an extraordinary turn after the Court of Appeal (CoA) issued two contradictory judgments regarding the Directorate of Public Prosecutions’ (DPP) civil forfeiture application against Seretse and his companies.The dispute stems from an August 2021 High Court ruling by Justice Godfrey Radijeng, who dismissed the DPP’s application to forfeit assets belonging to Seretse and his firms—M & B, Raging Bull, and Khulaco (Pty) Ltd.The disputed funds trace back to August 2017, when then-Director of Intelligence and Security Services (DISS), the late Isaac Kgosi, requested P250 million from the Department of Energy to construct petroleum storage facilities.Kenneth Kerekang, then-Director of the Department of Energy, authorised access to the funds via Kgori Capital, the National Petroleum Fund (NPF) manager. Between 18 August and 17 November, Seretse transferred P230 million from the NPF account to Khulaco in three tranches.He later disbursed P42 million to Basis Point Capital as a 20 percent management fee and P118.9 million to Israeli firm Dignia Systems under an agreement in which Kgosi represented the government.A balance of P69, 734, 260.00 remained in the Khulaco account.FIRST JUDGMENT: BRAND JA (April 2022)In April 2022, a CoA panel comprising Justices Abednego Tafa, Stephen Gaongalelwe, and Fritz Brand (presiding) dismissed the state’s appeal with costs. Justice Brand held that the state failed to prove that the P42 million or the Dignia Systems payment was derived from criminal conduct"Once it is accepted that the P42 million payment was legally made, it follows that the acquisition of properties derived from the payment was also legitimate," the judge said.The court ruled that the Dignia Systems disbursement formed part of a binding government contract and concluded the state had not established that the targeted assets constituted proceeds of serious crime.SECOND JUDGMENT: CAMERON JA (July 2026)In a stark reversal on July 31, 2026, a separate Court of Appeal panel composed of Justices Tebogo Tau, Isaac Lesetedi, and Edwin Cameron (presiding) overturned Justice Radijeng’s 2021 High Court ruling, contradicting the panel's earlier 2022 decision.In its appeal, the State argued that both Kgori Capital and Khulaco were nothing more than Seretse’s alter egos. Seretse was also accused of breaching his fiduciary duties to the state, specifically the duty of loyalty, the no-conflict and no-profit rule, as well as the duty to act in good faith.Granting summary judgment for the state, Justice Cameron ordered Seretse and Khulaco to repay the P42 million with interest and pay costs. The panel accepted the state’s argument that Kgori Capital and Khulaco functioned as corporate shells under Seretse’s control, finding that Seretse breached his fiduciary duties of loyalty, good faith, and duty to avoid conflicts of interest."Seretse should have set out explicitly that he was a shareholder in Khulaco and Kgori Capital," the judge stated. "He should have spelt out that, in managing the NPF, Kgori Capital would be paying him and his company 20 per cent of the NPF's P250 million. Seretse's conflict of interest was enormous, and his obligation to disclose it was imperative," he said.The panel concluded that Seretse offered no prima facie defence, evading the state's claims rather than disclosing the material facts of his defence. The legal conundrum now is that Seretse is expected to apply for a rescission of Justice Cameron’s judgment this week, based on the doctrine of res judicata—which prohibits re-litigating matters already decided between the same parties.He will argue that the 2026 panel ignored Justice Brand’s binding 2022 findings on the same transactions.According to jurists, the parallel judgments will create an extraordinary legal conundrum, in which both the state and Seretse find themselves saddled with two conflicting judgments of the same apex court concerning substantially the same transactions.“The affected parties have been left in the lurch, uncertain as to which judgment governs their rights and obligations. That is not merely an inconvenience; it goes to the heart of the rule of law, legal certainty and the finality of judicial decisions,” a senior counsel said when asked to opine on the developments.Seretse is also expected to argue a breach of natural justice, contending that summary judgment deprived him of the right to be heard on complex allegations of fraud, collusion, and money laundering.Legal observers note that two conflicting apex court rulings on identical facts create unprecedented uncertainty, leaving the rule of law and judicial finality in question.

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Legal conundrum ensues in Seretse’s P42m case