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CMB wants Peter Collins report set aside

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.

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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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