Staff Writer
Another twist in the legal tale of former Minister Kefentse Mzwinila as the former Minister finds himself trapped in a judicial paradox between two contradictory High Court rulings delivered within days of each other. Just days after Justice Barnabas Nyamadzabo handed Mzwinila a lifeline by ruling, he was not a fugitive and blocking his arbitrary arrest, a second judge, issued by Justice Oteng Motlhala on Friday morning delivered a devastating counter-blow.
In a separate judgment regarding the state’s seizure of the Mzwinila estate, Justice Motlhala ruled that the former minister did indeed flee the country to escape investigation, confirming a restraint order that indefinitely freezes a large chunk of his fortune.
This “tale of two judges” has created a legal reality where, in one courtroom, Mzwinila is viewed as a patient recovering from surgery who is being harassed, while in the courtroom next door, he is branded a fugitive on the run who is actively hiding his wealth.
While Mzwinila’s legal team was celebrating their victory regarding his personal liberty, Justice Motlhala was finalising a ruling that locks down his financial lifelines. The Directorate of Public Prosecutions (DPP) had approached Justice Motlhala to confirm a “Restraining Order” over Mzwinila’s assets including farms, cash, and shares arguing that he was dissipating them while hiding in South Africa. Mzwinila’s lawyers fought back, arguing the matter wasn’t urgent and that he hadn’t fled, but Justice Motlhala rejected every single one of these defences.
Justice Motlhala was notably dismissive of Mzwinila’s claim that he missed his initial interview with the DCEC due to “bad weather” and flooding. The judge found it highly suspicious that while Mzwinila claimed the roads were too flooded to drive to the DCEC office in Gaborone, they were somehow clear enough for him to drive across the border to South Africa.
In his assessment, the judge bluntly stated that the “bad weather” excuse was clearly a ruse to buy time to flee. Furthermore, the court was unimpressed by the “medical emergency” defence, noting that Mzwinila only raised the issue of his spinal surgery after he had already left the country and the state had come knocking.
Crucially, Justice Motlhala found that Mzwinila was actively trying to “dissipate” or hide his assets. The judge pointed to the movement of furniture and equipment to South Africa as clear evidence that the estate was at risk of disappearing if the court did not intervene immediately.
Consequently, the court confirmed the Rule Nisi, meaning the freezing order is now final pending the outcome of a future forfeiture trial, leaving Mzwinila legally barred from touching his millions.
The confusion deepens when contrasting this with the judgment delivered by Justice Nyamadzabo in the parallel arrest interdict case.
Looking at the same set of facts, Justice Nyamadzabo reached a diametrically opposite conclusion, ruling that Mzwinila was not a fugitive because his location in South Africa was known and he had valid medical reasons for being there.
Nyamadzabo accepted that Mzwinila is currently undergoing surgery and has not escaped lawful custody, going so far as to describe the state’s repeated threats as harassment.
Interestingly, this legal deadlock leaves both parties in a precarious position. Mzwinila has secured a victory for his physical liberty, meaning he cannot be arrested without a warrant, yet he suffers a crushing defeat regarding his financial liberty. With his bank accounts and businesses frozen by Justice Motlhala’s order, he may struggle to pay for the very legal team fighting his cases or his medical bills in South Africa.
Conversely, the state has secured the money, which is the primary goal of asset forfeiture but their investigation is hampered by Nyamadzabo’s order preventing them from using the threat of arrest to pressure him into an interview.
It is almost certain that this matter will head to the Court of Appeal, as the highest court in the land will likely have to decide which version of the truth stands: Is Mzwinila a sick man being harassed, or a fugitive looting his own estate?
For now, the former minister remains in South Africa safe from handcuffs but cut off from his fortune.
