Businessman challenges prosecution powers

Businessman Bakang Seretse and his former lawyer, now DPP Kgosietsile Ngakaagae, are headed for an unusual legal showdown in the Botswana High Court over the scope and legality of prosecutorial powers exercised by the DPP’s Office. According to the Botswana Gazette, at the heart of the dispute is Seretse’s challenge to the legal basis upon which prosecutorial authority is delegated within the Directorate of Public Prosecutions. The case carries an unusual twist because Ngakaagae previously represented Seretse in the same criminal matter before his appointment as DPP. After assuming office and when the matter was reinstated, Ngakaagae recused himself from representing Seretse. Seretse, together with Sharifa Noor, Kgori Capital and Kgori Holdings, has appealed against a 30 June ruling by Magistrate Mareledi Dipate. The accused face 63 counts, including stealing by agent, money laundering, forgery of an official document and conspiracy to defraud government. Seretse and his co-appellants argue that the magistrate failed to determine whether written authority issued by the Deputy DPP amounted to lawful authority under Section 51A of the Constitution.

They further contend that the magistrate wrongly relied on Statutory Instrument No 57 of 2005 without first determining whether the DPP possessed legal authority to create the delegated framework upon which the prosecution relies. The appellants contend that the decision to prosecute belongs exclusively to the DPP and that any delegation can extend only to implementing a decision already taken by the DPP, notes the Botswana Gazette. They are asking the High Court to overturn Dipate’s ruling and declare that prosecutors Thabo Malambane, Othugile Mabe and Ishmael Matsiara lacked authority to institute and prosecute the charges against them. The appellants also want the charge sheet signed by Malambane quashed and set aside, together with an order for costs. The challenge could have implications beyond Seretse’s case because it questions the legal foundation upon which prosecutorial functions are delegated within Botswana’s criminal justice system.