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How Brite Star dumped bed ridden Selebi Phikwe

Controversial Brite Star Aviation, a purportedly US based company which was destined to develop an Aviation plant to resuscitate the bid ridden economy of Selebi Phikwe following the collapse of BCL copper and nickel mine dumped Botswana for Malaysia, Weekend Post has learnt.

This is notwithstanding a signed official Memorandum of Understanding the company entered into with SPEDU, Civil Aviation Authority of Botswana (CAAB), Botswana International University of Science and Technology (BIUST), Selebi Phikwe Town Council (SPTC), Botswana Investment and Trade Centre (BITC) and the Ngwato Land Board.

Based in Fredericksburg, Texas, with Directors from Hungary, Brite Star had promised to develop in Selebi Phikwe an aircraft manufacturing plant, where B22 lightweight aircraft will be manufactured, aviation academy, the aircraft service/maintenance/repair, pilot training academy, a research and development centre and Eco safari tourism among others. 

The manufacturing plant was estimated to cost a whopping 1.5 billion pula in which Brite Star was to solicit the funds from both Botswana government and abroad in order to design and build the state of the art plant. In the process, Brite Star assured Batswana to create at the plant more than 3000 jobs in the then succeeding five years in Selebi Phikwe – to compensate for more than 6000 people that lost their jobs –when the BCL mine collapsed. 

Speaking at the media tour organised by SPEDU this week, Chief Executive officer (CEO) Dr. Mokubung Mokubung confirmed that indeed Brite Star dumped Botswana and he heard reports that they opted for Malaysia instead.  The company claim to have a number of operations in the US, Hungary and China.

“I heard that after abandoning Botswana, they went to Malaysia to invest the said Aviation school. They left us hanging, stranded and hungry for the deal that did not see the light of the day,” Dr. Mokubung said this during the media visit at the Selebi Phikwe airstrip/airport which is adjacent to where the 1.5 billion pula aviation plant was to be developed.

He continued: “there is a cartridge this side next to this airport spanning 10 hectares of land that we secured for Brite Star Aviation plant. We did first stage of due diligence and what was left was the next stage of due diligence. However the company then pulled out from the agreement. They did so by simply saying they will be back and went into thin air.”

According to Dr. Mokubung, it appears they were not the only one which Brite Star was targeting and that include the Southern African Development Community (SADC) and even international and it seems they preferred other countries other than Botswana, mostly likely Malaysia.

“They didn’t even write to us to inform us that they have pulled out of the deal despite having signed a proper Memorandum of Understanding,” he observed.  The SPEDU CEO said they are disappointed by Brite Star decision as the ‘shady’ company took a business decision on their own in America and Hungary while dumping Botswana. 

“They shunned us notwithstanding that they have given us reasons that Phikwe has free air space and therefore it will be good for the aviation school. We have made proposition at the government to put in place utilities like water and extra power and the rail spare and all were in order in our judgement.” 


Dr. Mokubung recounted that, at that point where Brite Star started keeping quiet, and kept quiet for long, they then discussed the matter with Board of Directors of SPEDU to call the deal off and tell Batswana that “it failed.”  Another board member who was also on the tour buttressed the CEO by adding that when there is a problem somewhere, like it was the case in Selebi Phikwe, everyone can claim to solve the problem and may try their luck as Brite Star did. “And then when you want some kind of due diligence then they chicken out.”

The board members stated that the collapsed deal with Brite Star, had made them to come to a point where they have to question the real mandate of SPEDU whether there is no how it can be strengthened because as it stands “we simply facilitate, we canvass, we cajole the companies to invest in Selebi Phikwe region and then what? If they refuse/ dump us, then what?”

Recently, Brite Star Legal and Transactional Advisor, Advocate Efan Khan has told a local newspaper last year that Brite Star has not finalised its intention to set up its Aviation Assembly plant in Botswana as yet. “Some issues still require to be addressed such as (Environmental Impact Assessment (EIA), utility connections etc. If those items will delay Brite Star’s entry into Botswana, Brite Star may consider other countries to locate its Aviation plants since Brite Star has to deliver on confirmed orders for aircraft,” said Khan at the time.  

Meanwhile, some key people and decisions makers in Selebi Phikwe have always been sceptical about the plan SPEDU has with Brite Star calling it dubious and shady. Among them, Selibe Phikwe West lawmaker Dithapelo Keorapetse had told Weekend Post that it was not clear whether the company, Brite Star, is genuine and had good intentions to develop the desperate Selibe Phikwe.

“I wish to caution government and SPEDU to be cautious about flyby night investors who will take advantage of our desperation to revitalize the economy of our town,” Keorapetse highlighted back them about the company which he asserted that “raises eyebrows”.

He said Botswana should have learnt a lesson from the 500 million pula Palapye Glass Project where the company name is also nowhere in the list of approved manufacturers in China or Hungary where it claims to have presence.
Keorapetse asserted that Brite Star Aviation is not a multinational corporation specializing in aircraft parts manufacturing and maintenance and pilot training as they purported.

“I hope this is not a company trying their luck in the aviation industry through the help of Botswana government. Aircraft manufacturing maintenance is no child's play, it takes many years of research and development, innovation and huge investment, this track record is unclear for Brite Star,” he said then. Due diligence, according to the MP,  must be done to the fullest before the government injects money and gets robbed like in Pula Steel and the collapsed 500 million Palapye Glass Project.

In an email conversation with this publication, Mbaki Ngaiti, an Aircraft Maintenance Engineer with Air Namibia, also had his reservations with Brite Star citing that the competence of the company was unclear. “While this sounds very exciting in terms of the positive socio economic impact such a huge investment would bring to the struggling mining town, it would be very naïve not to scrutinise Brite Star Aviation to determine if indeed their promises will come to fruition.”

He said Brite Star Aviation is just a group of aviation hobbyists and enthusiasts, operating a lodge in a hangar in Fredericksburg. Meanwhile the Legal Advisor for the company Brite Star Aviation Advocate Khan explained to Weekend Post recently that “Brite Star Aviation is a joint venture set up for the proposed Botswana and other operations.

It will incorporate a local Botswana company in the event it proceeds to invest in Botswana.” He also said then that the entity has not entered into any partnership or joint venture with the Botswana Government. He said on October 20, last year, Brite Star Aviation will be flying into the country with their engineers and other people to do designs of the plant at Selibe Phikwe.

“Their shareholders approved funding. They will show us the money in Botswana and millions will be deposited. They would have put necessary funds in their Botswana account. Already they have opened an office in Gaborone. We will give them the benefit of the doubt.” Unlike the Arabs who ditched the Botswana government at the eleventh hour, at least for now, he said, they can trust Brite Star Aviation.

However, the deal has collapsed and Brite Star is nowhere to be found. Meanwhile, when answering a question in Parliament still last year, the then Assistant Minister of Trade, Assistant Minister of Investment, Trade and Industry Biggie Butale said they were not aware of any red flags that should raise alarm as the proposed development was similar to what the Brite Star was currently establishing in Malaysia and ‘this project is purely a Foreign Direct Investment venture.’

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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy. 

The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.

However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world.  The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.

Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.

“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.

The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)

Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.

“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.

“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.

“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.

“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.

For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.

In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.

According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.

In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled.
Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.

Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects.  During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies.  Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination.  The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.

The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.

Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.

He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful.  Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.

But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB.  FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.

Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.

Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB.  “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.

The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).

FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders.  Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.

In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.

But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings.  “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.

FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries).  The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?

“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.

“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.

He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”

“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.

Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.

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