Capital Management Botswana (CMB) directors, Rapula Okaile and Tim Marsland want the Statutory Manager’s report on their company to be reviewed and set aside because it characterised by falsehoods, bad faith, unreasonableness.
Okaile and Marsland’s decision to approach the court to set aside Peter Collins’ report comes following a liquidation hearing this week at which their attorney suggests he was unfairly treated and mocked. He further narrates that the process was flawed and natural principles of justice were not observed.
Okaile and Marsland in their affidavit to court posit that Collins’ findings and conclusions are not supported by any facts indicative of any wrong doing on the part of CMB directors or the company. “They are also not supported by any business principles of how private equity functions or operates,” writes Okaile.
In addition Okaile stresses that by the time Peter Collins was appointed, Capital Management Botswana had no interest inn the Botswana Opportunities Partnership as it was disposed of in October 2017 and Capital Management Botswana was removed as Manager by the new owner prior to the appointment of Peter Collins. “In the context of the flawed understanding and misappreciation of principles of private equity, Peter Collins’ reports are unreasonable, irrational and have been prepared with ulterior motive and should therefore be reviewed and set aside.”
Okaile disputes the indebtedness of Capital Management Botswana and further states that claims that the company is insolvent are false and problematic. “He concludes that Capital Management Botswana is indebted to various persons and entities. He makes the findings without asking the company directors about the debts and inquiring from them whether such debts exist and if they do, why they have not been paid.”
Okaile further writes that besides debts which are denied or opposed on bona fide basis, Peter Collins recommends liquidation on the basis of a possible damages claim. “An unproven damages claim can never be a basis upon which a company can be liquidated.” According the CMB director based in Botswana, the fact that Peter Collins would want Capital; Management Botswana to be liquidated on account of possible damages claim is clear indication of bias, improper motive and desperate desire to want it liquidated at all costs. Okaile is of the view that the conduct of the Statutory Manager is unlawful and liable to be set aside and reviewed.
“The other basis upon which his reports particularly the one dated the 7thth of June 2018 should be set aside is that, he prepared it when he was not confirmed as Statutory Manager. “…he cannot have prepared the report before the court confirmed his appointment.” Okaile is adamant that Peter Collins’ reports were prepared illegally and should be set aside.
In disputing claims that they have siphoned P500 million from pensioners Okaile is adamant that they have proven that assets do exist that cover the alleged figure. He also points that Kawena, which is disputed is a big company operating from Mozambique and BOP has a 50% share in it.
WHAT CMB DIRECTORS DISPUTE
According to the former judge Collins in his statutory report, a P20 million loan under investigation appears to have originated from a verbal request by Cell City’s management to CMB’s Tim Marsland “for a short term facility to fund working capital in order to finance a one-off deal for purchase and sale of mobile handsets.”
According to a leaked CMB Statutory Management Report prepared by former High Court Judge, Peter Collins, the audited financial statements of Cell City after BOP investment shows a Cash flow statement reflects negative operating cash flow of P49, 559,259, negative investing cash flow of P4, 164,870 financed by net cash raised of P49, 978,510 from a share issue and a related party loan, primarily from BOP.
Net cash flow for the year was a negative P3, 270,898 according to Cell City’s financials. The statutory manager Collins was appointed by the Non-Bank Financial Institutions Regulatory Authority (NBFIRA) to CMB.According to the CMB Statutory Management Report, the balance sheet reflects total assets of P109, 976,679; equity of P48, 887, 605; and liabilities of P61, 089,074. The Profit and Loss account reflects revenues of P202, 433,257 and a pre-tax profit of P20, 140,268.
The Statutory Management Report has also curiously found that during the financial year of 2017 shares were issued to raise the issued share capital to P30 million but there was nowhere where a reflection of an increase in the number of shares in issue. What raised the statutory manager’s eye brows was a P20 million loan which was facilitated obscurely and not documented in the company’s financial records.
“I have nothing to add to section 19 of my Interim Report save that I neglected to state that the loan of P20 million was advanced by CMBF1 whereas the Financial Statements of the company reflects it as a loan from BOP, viz the equity investor. BOP at no stage gave authority for the introduction of this debt. Payment of it was made from general funds in the CMBFl bank account. The debtor/creditor relationship would nevertheless appear, at least ostensibly, to be between the company and BOP (rather than CMB).
That is the way the company understood it. Moreover, I do not think that it can fall from the mouth of CMB that it was extending its own resources to an unsecured commercial loan to a company in which its principal (BOP) holds 50 percent equity,” said the statutory manager Collins in his report seen by this publication. The statutory manager further revealed that the loan is unsecured with no set term for repayment and no agreed rate of interest.
It is also stated that this fact is confirmed in the audited financials dated 30 September 2017. However, the borrower has undertaken to pay (and has paid) interest at an effective rate of 5 percent p.a. since October 2016. P346, 393.42 in interest has been paid up to 31 December2017 said the statutory manager.
The deal which saw BOP buying 50 percent stake in Cell City was the centre of a meeting held by the BOP Investment Committee held at the plushy Sunny Side Hotel in Johannesburg, South Africa. Those in attendance at the meeting were Rasoava Rijamampianina who was chairing the meeting, Martin Makgatlhe, Tim Marsland and Rapula Okaile. It is revealed in documents passed to this publication that the minutes of the meeting reflect that the investment was “presented, discussed and approved.”
However, according to the statutory manager, it is not clear whether a specific detailed investment case was presented. In the Statutory Management Report which followed the ongoing CMB liquidation, Collins says the relationship between CMB and BPOPF in respect of the BOP is in dispute and is pending litigation and arbitration.
CMB challenges Liquidation handler
Okaile and Marsland have since written a letter to the Registrar and Master of the High Court raising concerns and complaints at the manner in which the Ms Chipo Gaobatwe handled the inquiry. They state that she handled the inquiry in a very biased and unfair way. According to their affidavit, “She was impatient, temperamental and hostile to clients’ attorney, Mr Gabriel Kanjabanga.” They state that she was blantandly biased towards Mr Peter Collins who is the liquidator’s legal advisor.
According to Okaile and Marsland, Kanjabanga was constantly interjected and interrupted when trying to make submissions. “Clients attoney was constantly threatened with contempt and thus was prevented from fully and effectively representing the clients to the best of his ability.” They want the Master to intervene “in the most legally possible way”.
CMB Directors threaten Desai
Okaile and Marsland have also written a letter to Rizwani Desai of Desai Law Practice accsuing him of using information they consulted him on against them in court. They have informed him that they will be reporting him to the Law Society of Botswana because he breached his professional ethics.
As the preparations for the Botswana Democratic Party (BDP) congress are about to kick off, reports on the ground suggest that the party’s Deputy Treasurer Jackdish Shah will not defend the position in August as he contemplates relocation.
According to sources, the businessman who joined the BDP Central Committee in 2015 at the 36th Congress held in Mmadinare is ready to leave the party’s politburo. It is said he long made up his mind not to defend the position last year. A prominent businessman, Shah, when he won the position to assist Satar Dada in 2015 was expected to improve the party’s financial vibrancy. By then the party was under the leadership of Ian Khama.
According to close sources, Shah long decided not to contest because he has fallen out of favour with the party leadership. It is said he took the decision after some prominent businessmen who are BDP members and part of football syndicate decided to push him out and they used their proximity to President Mokgweetsi Masisi to badmouth him hence the decision.
“The fight at the Botswana Football Association (BFA) and Botswana Football League (BFL) has left him alone in the desert and some faces there used their close access to the President to isolate him,” said a source. Media reports say, Shah does not see eye to eye with BFA President MacLean Letshwiti who is also Masisi’s buddy hence the decision.
BFL Chairman Nicholas Zackhem is said to be not in good terms with Shah, who at one point Chaired the then Botswana Premier League (BPL). “He is seriously considering quitting because of what is unfolding at the team (Township Rollers) which is slowly not making financial gains and might be relegated and he wants to sell while it is still worth the investment,” said a highly placed source.
Shah is a renowned businessman who runs internet providing company Zebra net, H &G, game farm in Kasane, cattle farm in Ghanzi region and lot of properties in Gaborone. He also has two hotels in USA, his advisors have given him thumbs up on the possible decision of relocating provided he does not sell some of the investments that are doing well.
Asked about whether he will be contesting Shah could not confirm nor deny the reports. It is said for now it is too early as a public decision will have to be taken after the national council meeting and prior to the national congress. “As a BDP Central Committee member he cannot make that announcement now,” a BDP source said.
BDP is expected to assemble for the National Council during the July holidays while the National Congress is billed for August. It is then that the party will elect a new CC members. The last time BDP held elective congress was at Kang in 2019. The party is yet to issue writ.
The government has failed to implement some commitments and agreements that it had entered into with unions to improve conditions of public servants.
Three years after the government and public made commitments aimed at improving conditions of work and services it has emerged that the government has ignored and failed to implement all commitments on conditions of service emanating from the 2019 round of negotiations.
In its position paper that saw public service salaries being increased by 5%, the government the government has also signalled its intention to renege on some of the commitments it had made. “Government aspires to look into all outstanding issues contained in the Labour Agreement signed between the Employer and recognised Trade Union on the 27th August 2019 and that it be reviewed, revised and delinked by both Parties with a view to agree on those whose implementation that can be realistically executed during the financial years 2022/23, 2023/24 and 2024/25 respectively,” the government said.
Furthermore, in addition to reviewing, revising and de-linking of the outstanding issues contained in the Collective Labour Agreement alluded to above and taking on a progressive proposal, government desires to review revise, develop and implement human resource policies as listed below during the financial year 2022/23,2023/24,2024/25
They include selection and appointment policy, learning and development policy, transfer guidelines, conditions of service, permanent and pensionable, temporary and part time, Foreign Service, expatriate and disciplinary procedures.
In their proposal paper, the unions which had proposed an 11 percent salary increase but eventually settled for 5% percent indicated that the government has not, and without explanation, acted on some of the key commitments from the 2019/2020 and 2021/22 round of negotiations. The essential elements of these commitments include among others the remuneration Policy for the Public Service.
The paper states that a Remuneration Policy will be developed to inform decision making on remuneration in the Public Service. It is envisaged that consultations between the government and relevant key stakeholders on the policy was to start on 1st September 2019, and the development of the policy should be concluded by 30th June 2020.
The public sector unions said the Remuneration Policy is yet to be developed. The Cooperating Unions suggested that the process should commence without delay and that it should be as participatory as it was originally conceived. Another agreement relate to Medical Aid Contribution for employees on salary Grades A and B.
The employer contribution towards medical aid for employees on salary Grades A and B will be increased from 50% to 80% for the Standard Option of the Botswana Public “Officers’ Medical Aid Scheme effective 1st October 2019; the cooperating unions insist that, in fulfilling this commitment, there should be no discrimination between those on the high benefit and those on the medium benefit plan,” the unions proposal paper says.
Another agreement involves the standardisation of gratuities across the Public Service. “Gratuities for all employees on fixed term contracts of 12 months but not exceeding 5 years, including former Industrial class employees be standardized at 30% across the Public Service in order to remove the existing inequalities and secure long-term financial security for Public Service Employees at lower grades with immediate effect,” the paper states.
The other agreement signed by the public sector unions and the government was the development of fan-shaped Salary Structure. The paper says the Public Service will adopt a best practice fan-shaped and overlapping structure, with modification to suit the Botswana context. The Parties (government and unions) to this agreement will jointly agree on the ranges of salary grades to allow for employees’ progression without a promotion to the available position on the next management level.
“The fan-shaped structure is envisaged to be in place by 1st June 2020, to enable factoring into the budgetary cycle for the financial year 2021/22,” the unions’ proposal paper states. It says the following steps are critical, capacity building of key stakeholders (September – December 2019), commission remuneration market survey (3 months from September to November 2019), design of the fan-shaped structure (2 to 3 months from January to March2020) and consultations with all key stakeholders (March to April 2020).
The unions and government had also signed an agreement on performance management and development: A rigorous performance management and reward system based on a 5-point rating system will be adopted as an integral part of the operationalization of the new Remuneration System.
Performance Management and Development (PMD) will be used to reward workers based on performance. The review of the Performance Management System was to be undertaken in order to close the gaps identified by PEMANDU and other previous reports on PMS between 1st September 2019 and 30th June 2020 as follows; internal process to update and revise the current Performance Management System by January 2020.
A job evaluation exercise in the Public Service will also be undertaken to among others establish internal equity, and will also cover the grading of all supervisory positions within the Public Service. Another agreement included overtime Management. The Directorate of Public Service Management (DPSM) was to facilitate the conclusion of consultations on management of overtime, including consideration of the Overtime Management Task Team’s report on the same by 30th November 2019.
A public health expert, Dr Edward Maganu who is also the former Permanent Secretary in the Ministry of Health has said that unlike many who are expressing shock at the population census growth decline results, he is not, because the 2022 results represents his expectations.
He rushed to dismiss the position by Statistics Botswana in which thy partly attributes the low growth rates to mortality rates for the past ten years. “I don’t think there is any undercounting. I also don’t think death rates have much to do with it since the excessive deaths from HIV/AIDS have been controlled by ARVs and our life expectancy isn’t lower than it was in the 1990s,” he said in an interview with this publication post the release of the results.
Preliminary results released by Statistics Botswana this week indicated that Botswana’s population is now estimated to be 2,346,179 – a figure that the state owned data agency expressed worry over saying it’s below their projected growth. The general decline in the population growth rate is attributed to ‘fertility’ and ‘mortality’ rates that the country registered on the past ten years since the last census in 2011.
Maganu explained that with an enlightened or educated society and the country’s total fertility rate, there was no way the country’s population census was going to match the previous growth rates. “The results of the census make sense and is exactly what I expected. Our Total Fertility Rate ( the average number of children born to a woman) is now around 2.
This is what happens as society develops and educates its women. The enlightened women don’t want to bear many children, they want to work and earn a living, have free time, and give their few children good care. So, there is no under- counting. Census procedures are standard so that results are comparable between countries.
That is why the UN is involved through UNFPA, the UN Agency responsible for population matters,” said Maganu who is also the former adviser to the World Health Organisation. Maganu ruled out undercounting concerns, “I see a lot of Batswana are worried about the census results. Above is what I have always stated.”
Given the disadvantages that accompany low population for countries, some have suggested that perhaps a time has come for the government to consider population growth policies or incentives, suggestions Maganu deems ineffective.
“It has never worked anywhere. The number of children born to a woman are a very private decision of the woman and the husband in an enlightened society. And as I indicated, the more the women of a society get educated, the higher the tendency to have fewer children. All developed countries have a problem of zero population growth or even negative growth.
The replacement level is regarded as 2 children per woman; once the fertility level falls below that, then the population stops growing. That’s why developed countries are depending so much on immigration,” he said.
According to him, a lot of developing countries that are educating their women are heading there, including ourselves-Botswana. “Countries that have had a policy of encouraging women to have more children have failed dismally. A good example is some countries of Eastern Europe (Romania is a good example) that wanted to grow their populations by rewarding women who had more children. It didn’t work. The number of children is a very private matter,” said Maganu
For those who may be worried about the impact of problems associated with low growth rate, Maganu said: “The challenge is to develop society so that it can take care of its dependency ratio, the children and the aged. In developed countries the ratio of people over 60 years is now more than 20%, ours is still less than 10%.”
The preliminary results show that Mogoditshane with (88,098) is now the biggest village in the country with Maun coming second (85,293) and Molepolole at third position with 74,719. Population growth is associated with many economic advantages because more people leads to greater human capital, higher economic growth, economies of scale, the efficiency of higher population density and the improved demographic structure of society, among many others.