Bakang Seretse and his companies, Khulaco Proprietary Limited and MandB Properties, have applied to have Court of Appeal President Tebogo Tau and Justice Isaac Lesetedi recuse themselves from a pending appeal over interest earned on restrained funds. They argue that the two judges have already expressed views that create a reasonable apprehension of bias.
The application arises from a dispute over who is entitled to interest generated from millions of pula that were frozen under the Proceeds and Instruments of Crime Act before being released following the collapse of the state’s forfeiture case against Seretse and his companies.
At the centre of the matter is an Appeal in which the Attorney General is challenging a High Court judgment by Justice Zein Kebonang that awarded Seretse, Khulaco and MandB Properties interest accrued on restrained funds.
Seretse argues that Tau and Lesetedi should not sit on the appeal because they recently formed part of a three-judge panel that delivered judgment in a separate but related case involving the same P42 million payment made to Khulaco under a contract linked to the National Petroleum Fund.
According to the application, the July 31 judgment, authored by Justice Edwin Cameron and concurred in by Tau and Lesetedi, contained findings that characterised the transaction and Seretse’s conduct in strongly negative terms. Seretse points to passages in which the court referred to ‘sticky fingers’, suggested that ‘a monstrous heist was in the making’, and stated that a ‘whiff of fraud’ lingered around the transaction.
He argues that those findings went beyond procedural issues and amounted to judicial conclusions about his honesty and the legitimacy of the underlying transaction.
Seretse contends that the remarks are difficult to reconcile with an earlier Court of Appeal judgment delivered in 2022, which dismissed the state’s forfeiture appeal and accepted that the P42 million payment had a contractual basis.
‘The cumulative effect of those findings was to judicially characterise me as having participated dishonestly in a transaction involving the appropriation of Government monies,’ Seretse states in his affidavit. He argues that because the present appeal concerns funds connected to the same underlying transaction, a reasonable and informed observer could conclude that Tau and Lesetedi have already formed views on issues that may arise in the matter. The Attorney General opposes the application.
The Attorney General argues that the recusal bid is not based on dissatisfaction with an unfavourable judgment but on concerns about the appearance of impartiality.
Seretse and Co maintain that the test is not whether the judges are actually biased, but whether there is a reasonable apprehension that they may not approach the pending appeal with an open mind.
The dispute stems from lengthy litigation over funds linked to the National Petroleum Fund. The Directorate of Public Prosecutions previously sought forfeiture of assets connected to Seretse and his companies, but both the High Court and the Court of Appeal dismissed those efforts. After the restrained funds were released, a fresh dispute emerged over interest that accrued while the money was held in interest-bearing accounts.
In the recusal application, Seretse asks that Tau and Lesetedi step aside and that the matter be reassigned to a differently constituted Court of Appeal panel.