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Masiyiwa fights defamatory suits in South Africa

Telecommunication magnate, Strive Masiyiwa is embroiled in a legal suit, after dragging three compatriot for defamation in a matter relating to the origins of Econet Zimbabwe and its relationship with TS Masiyiwa Holdings (Private) Limited.

Masiyiwa, a London based Zimbabwean businessman and the founder and Executive Chairman of diversified international telecommunications, media and technology group Econet Wireless, on the 13th May 2019 filed an application with South African High Court, Gauteng local Division, Johannesburg with Econet South Africa as the First Applicant, Econet Wireless Zimbabwe Limited as Second Applicant, Econet Global PTY LTD (Mauritius) as Third Applicant and Strive Masiyiwa himself as the Fourth Applicant.

The matter cites Rutendo Benson Matinyarare as the First Respondent, Mutumwa Dziva Mawere as second while third is Pardon Gambakwe. The application seeks an order in the following terms:
5.1 The respondent be indicted from publishing in any form, any defamatory matter, including innuendo, and any injurious falsehoods of and concerning the Applicants, their business and/ or any of the Applicants’ products or services (collectively “defamatory matter,”

5.2 The respondent immediately remove from publication all and any forms of defamatory matter including without limitation from publication via video posts, comments or statements of any media or internet site/s including but not limited to www.youtube, www.gambakwe.com and www.facebook.com (collectively “all media”); and 5.3 The Respondents be ordered to refrain from publishing whether directly or indirectly, all and any defamatory matter on all media.

In his affidavit signed on 24th April 2019 at Sandton Police Client Service Center in South Africa, Dr Kuzozvirava Shumba said this matter involves a factual and legal dispute in relation to the origins of a company called, Enhanced Communications Networks (Private) Limited (Econet Zimbabwe), and its relationship with a company called TS Masiyiwa Holdings (Private) Limited (TSM), a company in which he (Shumba) was represented as a shareholder holding 2.4 percent of its issued share capital per Prospectus, a copy which was attached.

Shumba also reiterate that it is significant that Strive Masiyiwa who is fixed with the knowledge about the issues in dispute chose to hide behind Douglas Mboweni (CEO Econet Wireless Zimbabwe Limited) who purports to have been authorized to represent him in this matter by virtue of a confirmatory affidavit. Shumba also said it is his contention that this application fits into Masiyiwa’s known strategy of hiding his fraud using parties that have no knowledge of the facts that they put before the courts.

Douglas Mboweni on behalf of the Applicants alleges that the following constitute defamatory statements in relation to the affairs of the applicants;
“Mutumwa Zviva Mawewere (Second Respondent) claims that Strive Masiyiwa’s court application to interdict the investigations that Mr. Mawere was heading in relation to corruption allegations that some officers working for First Mutual Life (FML) especially in respect of an unauthorized investment of Z$180 million that resulted in Masiyiwa gaining control of Econet on the back of a contribution by TSM Private Limited (TSM), a company in which Mr. Masiyiwa and his wife, Tsitsi, held about 67. 5% shares in.”

“The article clearly suggest that material falsehoods were included in the relevant prospectus and it is clear from the article as a whole that the allegation is being levelled that the process was tainted and designed to defraud”.  Shumba as a financier of the pre- IPO Econet argues that he has personal knowledge which Mr Mboweni does not possess since he was not involved at all at the material period.

“Accordingly, it is part of my complaint that Mr. Mboweni knowingly and wittingly misrepresented facts before the South African Court that the version that Mr. Masiyiwa who associated himself with the application is false and that a careful reading of the prospectus when juxtaposed with the true nature of the facts of this matter will confirm a crime of perjury and defeating the ends of justice.

This application constitutes abuse an abuse of the SA justice system because the correct version is known to Mr. Masiyiwa that his purported shareholding in TSM was based on the fact that TSM, a Zimbabwean registered company that was subject to exchange control limitations was the lawful owner of the equipment that was purportedly acquired by Econet at the IPO stage”.

Daniel Shumba said Mr. Mboweni knew and ought to have known that the basis of this application is based on manufactured facts that are not supported by any reality. “The allegation is made that the fourth applicant (Masiyiwa)’s family company improperly benefited as the result of an “international fraud,” which “resulted in an unjust and corrupt enrichment of the Masiyiwa family and related shareholders of TSM.”

Shumba said the evidence and facts at his disposal confirm that in truth and fact, Mr. Masiyiwa was a driving behind and fraudulent scheme that resulted in gaining the control of a company that he helped fund and more significantly the purported equipment that TSM swapped for shares in Econet was not owned by TSM and in any event TSM had no capacity to procure the equipment in question.

“It is my contention that Messrs. Mbeweni and Masiyiwa knew and ought to have known that the whole IPO was tainted with fraud.” On paragraph 1 of the affidavit Mr. Masiyiwa represents before a Court that he was the majority shareholder of TS Masiyiwa Holdings (Private) Limited (TSM) which he erroneously misrepresented as MASCOM fully knowing that MASCOM was a separate company in which Shumba was a purportedly 25% shareholder at the material time.

“I only become aware of this affidavit a few weeks ago. At all material times, I was made to believe that TSM was a company that was the vehicle of owning the shares in Econet at IPO stage or during 1998. Until then, my understanding was that Mascom was the sole shareholder of Econet yet in this affidavit, Mr. Masiyiwa represents otherwise.

On paragraph 4 Mr. Masiyiwa also misrepresented that Mascom, a company which Daniel Shumba was a shareholder, was a successor to Retrofit (Pvt.) Limited. However, in terms of company law and practice, there is no such thing as a successor of a juristic or entity. “I also draw your attention to a copy of judgement under Case Number SC251/96 in which the Learned Judge Gubbay CJ, stated as follows; TS Masiyiwa (Private) Limited (Mascom) owns the entire share capital in Econet.”

The deponent Daniel Shumba said Masiyiwa is no longer within the reach of the Zimbabwean justice system and wants to abuse the SA system to perpetuate a lie. It is important that the proper facts relating to this matter are investigated properly so that the delayed justice and equity in this matter can be known and ventilated.

The second Respondent Mutumwa Zviva Mawewere also argues that Civil Procedure and the common law in South Africa require that before a party may sue in Court of law, it must prove that it has title to sue. In this case, Mr. Mboweni must prove that he is the right person to sue and depose to factual matters in the cause and also that he has ability or capacity to substitute the fourth applicant.

In this matter, there are no averments made as to how Mr. Mboweni purports to act in relation to the applicants other than the bold assertion that he is CEO of the second applicant, a company that is domiciled in Zimbabwe, while at the same time acknowledging that the other three applicants are situated outside the jurisdiction of Zimbabwe.

A letter authored by the National Merchant Bank of Zimbabwe Limited on 22nd January, 1998 with ref: Exchange Control Application for TS Masiyiwa Investments in Mascom Botswana (Pty) Limited reads;
“This is to confirm that we, National Merchant Bank Zimbabwe Limited, bankers to TS Masiyiwa Holdings (Pvt.) Limited, will obtain Exchange Control Approval from Reserve Bank of Zimbabwe in respect of our client’s investments in Botswana.

We further confirm that our client’s application meets the normal criteria for such approvals from the Reserve Bank. We therefore have no doubt that the Reserve Bank of Zimbabwe will grant Exchange Control Approval for this investment.” The letter was signed by PF Timba Assistant General Manager, Corporate Finance Division.

In the High Court of Botswana Held at Lobatse on the 30th October 1998, in the shareholders dispute DECI Holdings (PTY) LTD 1st Applicant, Portugal Telecom Internacional, SGPS, SA 2nd Applicant and DECI Investment (PTY) Limited 3rd Applicant had dragged Strive Masiyiwa and Mascom Wireless Botswana (PTY) Limited before the court.

Judge Lesetedi had ruled that Mascom is a holder of one of only two cell network licenses issued by the Botswana Telecommunications Authority in the country. The shareholding Mascom and the relationship of the shareholders is governed by a consortium agreement entered into by the shareholders on the 11th day of August 1997 at Harare. This was before Mascom was awarded the licence.

Under the consortium agreement, the shareholding was as follows: (DECI – 36%, PTI – 25% and TSM- 14%). On the remaining 25%, 15% of the ordinary share capital was to be offered to institutional investors of Botswana origin, 5% to Southern African Enterprise Development Fund. At the time of this litigation, the aforementioned twenty- five per centum shareholding had not yet been taken up. The consortium agreement was to be an interim governing agreement pending the signing of a shareholder’s agreement, otherwise it was to lapse in the event of Mascom not being granted a licence.

Lesetedi said the governing contractual instrument is the consortium agreement has been cancelled on the basis inter alia that TSM has not paid its share call. Neither has TSM paid its contribution to DECI Holdings to make its own contribution to Mascom. TSM admits that it has not paid its share call although it now says the funds are available.

“It appears to me that if PTI had a prima facie right to cancel the agreement, then it appears to me that due to the public interest in Mascom, it is very important that an order be granted for the two companies to run with some semblance of normality in the interim pending the final determination of this matter.

Mascom was the first mobile telecom company Masiyiwa founded. He founded the company 21 years ago, few months before he established Econet Wireless in Zimbabwe. It is Botswana’s largest mobile operator with a reported 1. 7 million subscribers. Earlier in March, Econet Group spent $300 million acquiring a 53% stake in Mascom from MTN Group, thereby increasing its stake from 7% to 60%. The deal is expected to be concluded anytime soon as regulatory approval is at its final stages.

Earlier this year during his visit to Botswana and hosted by President Mokgweetsi Masisi Zimbabwe’s richest man, announced that his company, Econet Group, will list Botswana mobile network operator, Mascom, on the nation’s stock exchange later this year.

Speaking at a press conference in Gaborone, Masiyiwa said that by October this year, he intends to list some of Econet’s Mascom shares on the Botswana Stock Exchange in what he believes will be one of the biggest flotations on the bourse. “This is what I have always wanted to do …I have never held enough shareholding to push it through,” he told reporters.

On his Facebook page, Masiyiwa said that anyone who can raise $10 should be able to buy shares in Mascom. “In what I hope will be the biggest public listing ever undertaken in Botswana, I want to sell shares to anyone who can raise about 100 pula ($9.36),” Masiyiwa said.

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WIN drills media executives on Sexual Harassment

27th November 2020
Sexual Harassment

As the media industry comes full circle with sexual harassment policies in the workplace, media houses have been urged to ensure that this process cuts a wide swath so as to broaden the buy in.

Media organizations have begun to reassess and revise their sexual harassment policies as WIN continues to heighten a campaign against sexual harassment in the workplace. All the while a handful of organizations are either at drafting or implementation level of the policy.

To help media organizations crack down on sexual harassment, WAN-IFRA Women In News (WIN) held its 15th Round Table Meeting (Virtual) on 5th November, 2020 aimed at furthering sensitisation on the subject.

Media executives from Sub-Saharan Africa who attended the Roundtable meeting were motivated to climb on the bandwagon to address sexual harassment in the workplace.

A renowned expert in human resource concepts, Carin Anderson, shared on managing and preventing sexual harassment in news organisations. Anderson explored on essential tools that could assist organisations to navigate sexual harassment complaints effectively.

Anderson cautioned media executives against condoning a culture of Sexual Harassment. Linking sexual harassment to the current situation where COVID-19 has put many media houses in the red, Anderson cautioned it could negatively affect productivity.

She said staff could be forced to exit organisations, a development that will ultimately affect the financial performance of the business.

By hook or crook, organisations need to draft and implement comprehensive sexual harassment policies that are comprehensible to staff. According to Anderson, media executives must ensure of policies that have a prevention and cure approach while at the same time avoiding reactionary approaches.

She is of the view that a thorough sexual harassment policy could protect brands, would-be victims and the organisation untainted culture.

While the debate on sexual harassment has been dominated by fits and starts, of late progress has been by leaps and bounds.  Anderson opined that conducting anonymous surveys continues to determine the culture of an organization hence helps create conducive working conditions for employees.

She observed that such surveys are very important because everyone is given a chance to air their views or concerns. In doing so, employees will feel comfortable and free to share their experiences.

Anderson further said anonymous surveys can also help to depict any unwanted behaviours in an organisation. Such surveys promote the culture of calling a spade a spade. She advised all media partners present at the meeting to create a safe and clean environment for their employees than to wait for the symptoms of sexual harassment to manifest.

“Organisations need to implement the policy and create more awareness through training. In order to create more awareness organisations need to come up with code of conduct and set procedures that promote zero tolerance for sexual harassment,” she said.

WIN executive Director, Melane Walker denoted that sexual harassment happens everywhere; and it is very important to have an internal policy that deals with it. Having a written internal policy has helped WIN to significantly navigate sexual harassment quandary, she said.

All participants were encouraged to have a Sexual Harassment policy and to share it with everyone in the organisation.

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Plight of GBV amid Covid-19

26th November 2020
16-days-of-activism

The United Nation’s UNiTE campaign has marked the beginning of 16 days of activism against Gender-based Violence which will end in December 10 2020, under the global theme, “Orange the world: Fund, Respond, Prevent, Collect!”

The UN Secretary-General’s UNiTE by 2030 to End Violence against Women campaign (UNiTE campaign), managed by UN Women — is a multi-year effort aimed at preventing and eliminating violence against women and girls around the world.

The UN Women’s generation equality campaign emphasises the call for global action to bridge funding gaps, ensure essential services for survivors of violence during the COVID-19 crisis, focus on prevention, and collection of data that can improve life-saving services for women and girls.

Furthermore, the UN Secretary General’s report maintains that this year is like no other. Even before Covid-19 hit, violence against women and girls had reached pandemic proportions.

Globally, according to United Nations, 243 million women and girls were abused by an intimate partner in the past year.

Meanwhile, less than 40 percent of women who experience violence report it or seek help.

Evidently they suggest that as countries implemented lockdown measures to stop the spread of the coronavirus, violence against women, especially domestic violence, intensified- in some countries, calls to helplines have increased five-fold.

“In others, formal reports of domestic violence have decreased as survivors find it harder to seek help and access support through the regular channels. School closures and economic strains left women and girls poorer, out of school and out of jobs, and more vulnerable to exploitation, abused, forced marriage, and harassment,” said the UN.

According to the UN, in April 2020 as the pandemic spread across the world, the UN Secretary-General called for “peace at home”, and 146 member states responded with their strong statement of commitment.

“In recent months 135 countries have strengthened actions and resources to address violence against women as part of the response to Covid-19. Yet, much more is needed,” said the report.

Moreover, they submit that as today, although the voices of activists and survivors have reached a crescendo that cannot be silenced or ignored, ending violence against women will require more investment, leadership and action.

“It cannot be sidelined; it must be part of every country’s national response, especially during the unfolding COVID-19 crisis,” contended the UN report.

For the 16 Days of Activism, UN Women handed over the mic to survivors, activists and UN partners on the ground, to tell the story of what happened after COVID-19 hit.

According to Dubravka Šimonovic, special rapporteur on violence against women, there is urgent need to end pandemic of femicide and violence against women.

Ahead of the International Day for the Elimination of Violence against Women, she emphasizes that as the world grapples with the devastating impact of the COVID-19 pandemic and its negative impact on women, a pandemic of femicide and gender-based violence against women is taking the lives of women and girls everywhere.

Therefore, she is calling on all States and relevant stakeholders worldwide to take urgent steps to prevent the pandemic of femicide or gender related killings of women, and gender-based violence against women, through the establishment of national multidisciplinary prevention bodies or femicide watches/observatories on violence against women.

These bodies should be mandated to 1) collect comparable and disaggregated data on femicide or gender-related killings of women; 2) conduct an analysis of femicide cases to determine shortcomings, and recommend measures for the prevention of such cases, and 3) ensure that femicide victims are not forgotten by holding days of remembrance.

“Data this mandate has collected since 2015 through my Femicide Watch initiative corroborates the data available from the UN Office on Drugs and Crime, and indicates that among the victims of all intentional killings involving intimate partners, more than 80% of victims are women.  Many of these femicides are preventable. Since 2015, a growing number of States have either established femicide watches or observatories, and in an increasing number of countries, it is the independent human rights institutions, civil society organizations, women’s groups and/or academic institutions that have established femicide watches or observatories,” she argued.

GBV in Botswana

UNFDP (United Nations Population Fund) Botswana cites that, locally over 67 percent of women have experienced abuse, which is over double the global average.

“Gender-based violence undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in a culture of silence and normalization. Victims of violence, the majority of which are women and girls, can suffer sexual and reproductive health consequences, including forced and unwanted pregnancies, sexually transmitted infections including HIV, and even death,” indicated UNFDP

In his 2020 State of the Nation Address (SONA) he delivered on Monday 9th November at the Gaborone International Convention Centre (GICC), President Mokgweetsi Masisi said government is concerned about the snowballing of GBV incidences, saying, they have prioritized drafting of a Sexual Offenders Bill to be tabled during the sitting of the 12th Parliament.

“The Bill will establish a Sex Offenders’ Registry to record and publicise names and particulars of all persons convicted of sexual offences. To date twelve districts have set up the District Gender Committees in Chobe, Kweneng, Kgatleng, Kgalagadi, Maun, Serowe, Selibe-Phikwe, North East, Bobirwa Sub District, Mabutsane Sub District, Goodhope Sub District as well as Mahalapye Sub District. These committees will promote gender equality and women’s empowerment, and also address gender based violence,” Masisi said.

The President highlighted that the Botswana Police Service, which has been dealing a lot with GBV cases has taken swift action and introduced a Toll-Free number for reports on gender based violence. He further indicated that the Police will establish a Gender and Child Protection Unit

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Transgender persons in Botswana live a miserable life

23rd November 2020
Transgender persons

An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.

In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.

In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.

Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.

More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.

At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.

The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).

Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).

International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.

In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”

The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”

According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.

In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.

The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.

LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.

“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.

Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.

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