- Convinced the state has no case against him
- Wants his seized assets back
- DPP says it is not yet ready to prosecute
- Magosi says investigations can take up to five years
TEFO PHEAGE
The former Director General of the Directorate of Intelligence and Security Service (DISS), Isaac Kgosi, wants the state to return to him his assets seized eight months ago through a court order as ill-gotten goods or proceeds of crime.
In July last year, Lobatse High Court judge Tebogo Tau issued an order directing the seizure of Kgosi’s properties, including a farm, money, his Phakalane home and motor vehicles.
The seized property includes Portion 82 of Sentlhane Farms, Portion 83, Lot 61299 Gaborone, Land Rover motor vehicle registered B414 AXU, Land Cruiser motor vehicle B975 BHI, cattle consisting of 200 heifers, 25 Simmentals, 37 Brahman and money amounting to P549,763.07 held in a Barclays Bank of Botswana account number 8624117. The order was issued restraining the listed properties in terms of the Proceeds and Instruments of Crime Act (PICA).
The Gazette has established that Kgosi, who is under investigation for tax evasion and corruption, is convinced that the state’s investigations are a wild goose chase and a waste of time and now wants his assets back.
This was confirmed by his lawyer, Thabiso Tafila, who added that they would be writing to the state this week demanding that Kgosi be given back his assets. “The seizure was done pending investigations and it has been eight months now. What are they hoping to find which they have not found in eight months? We are writing them a letter this week informing them that they must do the right thing – return the assets or allow us to go to court to seek relief,” said Tafila in an interview this week.
The state, which has the burden of proof, has not moved an inch to prosecute. The custodian of the seized assets is the Office of the Receiver pending investigations and/or institution and finalisation of proceedings for a civil penalty order and civil forfeiture order.
The order also directed that those with financial obligations in respect of the property to fulfil such obligations, including any obligations relating to mortgage bonds, insurances, vehicle finance, rates, licences, utilities such as water and electricity accounts, and all interest accruing in respect of such obligations, pending the finalisation of forfeiture proceedings unless such a person signs a consent to judgment in favour of DPP.
Speaking to this publication, the Director of Public Prosecutions (DPP), Stephen Tiroyakgosi, said “the matter is not yet ready for prosecution as investigators are still at work with the prosecutor”.
This was reiterated by the head of DISS, Peter Magosi, who said such kind of investigations may take years to conclude. “In other countries they can even take over five years,” Magosi added. “So we are still at work.”
The debate around the case will be pinned upon four factors – the length of the delay, the reason for the delay, the claimant’s assertion of the right to a hearing, and the prejudice to the claimant because of the delay. The four-factor balancing test for determining whether a delay in instituting forfeiture proceedings after the subject property has been seized is unreasonability and unconstitutionality, according to research into assets forfeiture law by Gerald Macdowell.