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Inside NBFIRA, BPOPF appeal against CMB, Bona Life, Okaile, Collins

Botswana Public Officers Pension Fund (BPOPF) has called for punitive actions to be taken against Capital Management Botswana (CMB) Chief Executive Officer (CEO) Rapula Okaile.  

BPOPF is the appellant in a case where it, together with Non-Bank Financial Institution Regulatory Authority (NBFIRA) are appealing High Court Judge Justice Omphemetse Motumise’s ruling, handed down on 24 April 2018, in which he dismissed NBFIRA’s application to confirm the appointment of Peter Collins as Manager of CMB and did not confirm such appointment.

BPOPF in the case is the first appellant with Non-Bank Financial Institution Regulatory Authority (NBFIRA) being the second while on the other hand CMB is the first respondent, Bona Life the second and with the third being Okaile and Peter Collins is the fourth respondent. According to BPOPF as represented by Senior Counsels Advocates Panayiotis Stais and Stephen Vivian from South Africa, Okaile has been annoying and building up to self-aid in the case.

Stais stated in the appeal case court papers seen by WeekendPost that “BPOPF sought a punitive cost against Oakile. We submit that his conduct in this matter was vexatious and mounted to self-help.” The SA Advocate continued: “accordingly we submit that the appeal should be upheld with costs on the attorney and client scale, including the costs of two Counsels. The orders set in the notice of appeal.”

As such it is submitted in the appeal that the approach adopted by the court a quo in declining to confirm the appointment of Peter Collins, is central to the determination of the appeals outcome. In the highest court in the land, Justice Ian Kirby together with Singh Walia and Jacobus Brand are presiding over the appeal case.

Was BPOPF authorized to bring the counter-application?

Court papers indicate that both appellants (BPOPF and NBFIRA) appealed against the judgements for different reasons. In the counter application at the High Court, BPOPF sought an order placing CMB under statutory management. The order was sought in terms of section 46(1) of the Securities Act. “The court a quo dismissed the counter application on the basis that BPOPF did not have the written consent from NBFIRA that it required in terms of section 46(2) of the Securities Act.”  

Justice Motumise also held that the letters from NBFIRA did not effectively ratify the conduct of BPOPF.  Meanwhile Motumise also “granted the relief sought in a review application by CMB” and also “dismissed the conditional counter-application launched by Bona Life.”

The relationship between BPOPF and CMB

The appeal court papers also indicate that BOP is an en commandite partnership established in terms of the partnership agreement in November 2014. As at establishment CMB was the General partner of BOP, with a 1% partnership interest, and BPOPF was the only limited partner, with a 99% partnership interest. Moreover CMB was appointed by BOP as its fund manager.

Accordingly, “CMB was the face of BOP. CMB managed and controlled BOP. CMB carried on business on behalf of BOP. BPOPF was obliged to commit capital to BOP and honour capital calls made by CMB for further funds. A total of 477 million has been drawn down,” papers indicate.  

In the second half of 2017, the papers state that a dispute arose between CMB and BPOPF. In September 2017, BPOPF issued a call for further funds and BPOPF refused to honour the call because it contended that the call was invalid. “BPOPF issued a notice on 1 December 2017 in terms which it terminated CMB as General Partner (which resulted in CMB automatic termination as fund manager) for cause. It replaced CMB with another entity, Viltry (Pty) Ltd.”   

CMB then responded on 11 December 2017 by informing BPOPF that it had already removed BPOPF as limited partner on 28 November 2017 and disposed of BPOPF’s interest in BOP for 50 million. Court papers states: “BPOPF disputes this removal. It says that the call for funding was in breach of the partnership agreement.” It is understood that BPOPF explained to the court that it had set out the underlying basis for its complaint to NBFIRA in its 26 January 2018 letter.

“As the regulator of licensed entities such as CMB, part of NBFIRA’s role is to deal with complaints raised by regulated entities and affected parties,” papers highlight. They stated that “CMB has steadfastly refused to answer the logical question – to whom was the interest of BPOPF disposed and why did CMB only pay P50 million to BPOPF for this interest? Even if CMB was entitled to dispose of BPOPF’s interest in BOP (which is disputed), CMB was required to dispose of the partnership interest for a fair price to BPOPF.”

CMB, they further state that it was never subjected BOP to an independent valuation (as it was required and requested to do) and did not even attempt to explain the difference between its own valuation of BWP 447 million and the alleged on-sale for BWP 50 million and “accordingly there is currently an impasse.”

CMB contends that it has disposed of BPOPF’s partnership interest because of BPOPF’s failure to honour the invalid draw down notice. BPOPF disputes CMB’s right to do so and has removed CMB as General Partner and CMB disputes this and insists on its alleged right to continue acting as the General Partner.

CoA should uphold Motumise ruling, he did not err – Okaile

Meanwhile Michael Collins who is representing CMB and Okaile has requested the CoA to appeal Motumise’s decision insisting that he did not err. He submitted that “the court a quo did not err at all” and that “CMB is entitled to an order dismissing both NBFIRA and BPOPF appeals with costs.”
Judgement will be delivered next week.

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Africa continues to be a violent continent for journalists

12th May 2021
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COVID-19 has been identified as a burning factor fuelling the use of force to prevent journalists from working in Africa. This was said by Reporters without Borders in its 2021 World Press Freedom Index, indicating that although there was less deterioration in Africa’s “Abuses” score, it continues to be the most violent continent for journalists.

The 2021 Index shows that journalism, the main vaccine against disinformation, is completely or partly blocked in 73% of the 180 countries ranked by the organisation. The data reflects a dramatic deterioration in people’s access to information and an increase in obstacles to news coverage, further showing that journalists are finding it increasingly hard to investigate and report sensitive stories, especially in Africa, Asia and Europe.

After a wave of liberalisation in the 1990s in Senegal, Eritrea and Djibouti, press freedom violations are now only too common. They include arbitrary censorship, especially on the internet (by means of ad hoc internet cuts in some countries), arrests of journalists on the ground of combatting cybercrime, fake news or terrorism, and acts of violence against media personnel that usually go completely unpublished.

Reporters without Borders say respect for press freedom is still largely dependent on the political and financial influence that undermines their independence. For the most part, it says, State-owned media still tend to be governmental mouthpieces or propaganda tools and have a long way to go before they become independent public service media reflecting a wide range of opinion.

On the pretext of combatting disinformation and hate speech, many countries in Africa have adopted new laws in recent years with vague and draconian provisions that can easily be used to gag journalists.

It has been said that an increase in online attacks is another disturbing phenomenon making Africa a bad space for journalists in this era. These attacks are often by trolls close or directly linked to the government that are designed to discredit or intimidate journalists.

The report by Reporters without Borders show that African journalists were hit hard by the Coronavirus in 2020, suffering three times as many attacks and arrests from 15 March to 15 May as during the same period the year before.

Ranked number 38 globally, Botswana’s press freedom violations are said to have declined since President Mokgweetsi Masisi took over. Masisi, according to Reporters without Borders, has given at least frequent press conferences, unlike Ian Khama, who gave none.

Nonetheless, there is still no law on access to information, which journalists have long been demanding. The few privately-owned newspapers depend on advertising that they may or may not receive from the State.

Three years after taking office, Masisi has yet to keep his promise to revise draconian laws such as the 2008 Media Practitioners Act, which restricts their freedom to inform, journalists say, and the law on access to information.

In 2020, Botswana saw journalists being arrested and detained at holding cells by State security spies while on duty. The said journalists were interrogated, and their gadgets confiscated. Prior to that, one female journalist was ambushed by security officers at her home.

Even though Namibia has been doing well in protecting and giving journalists freedom since 2019, in 2020 several reporters were briefly arrested and some given warnings after putting a question to the President, and many media outlets were barred from government press conferences about the Coronavirus crisis.

It was against this background that a Namibian journalists’ union was formed in 2021, the first since the country became independent. Namibia is ranked number 23 in this year’s Press Freedom Index, becoming one of the countries in Africa doing well in respecting journalists.

In Ghana, a group of investigative journalists had to spend part of 2018 in hiding after producing a documentary about corruption in Ghanaian soccer. A ruling party parliamentarian who had been named in the documentary publicly threatened one of the journalists without ever being arrested or questioned.

According to Reporters without Borders, the journalist was shot dead in the street a few months later. Investigative reporters are often threatened even though journalists are rarely arrested. It was reported that, most cases of police aggression against journalists go unpublished but timid attempts have been made to combat this impunity.

South Africa’s 1996 constitution protects press freedom, but the State security agency spies on some journalists and taps their phones. Others are harassed and subjected to intimidation campaigns if they try to cover certain subjects involving the ruling African National Congress (ANC), government finances, the redistribution of land to the black population or corruption.

The opposition party in South Africa, Economic Freedom Fighters (EFF), led by Julius Malema was given a high court warning in 2019 because of its invective and hate speech against journalists. In 2020, the COVID-19 crisis did not spare journalism in South Africa.

Rubber bullets were fired at a reporter covering compliance with lockdown measures and a community newspaper editor even had to flee abroad after being threatened by the police for covering a lockdown-related story, RWB said.

The Djibouti 1992 Freedom of Communication Law is itself is an obstacle to free speech and media pluralism. It provides for jail terms for media offences and imposes age and nationality restrictions on those who can create a media outlet. In terms of media freedom, Djibouti is ranked 176th, 5th position from the lowest bottom.

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BFTU slaps Masisi with fierce demands

12th May 2021
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Botswana Federation of Trade Unions (BFTU) last week, during Labour Day, put forward sturdy demands to President Mokgweetsi Masisi and calling for government to act upon them promptly.

Following these celebrations over the weekend, BFTU presented demands for decent work and sustainable development to government.

In fact, the Union is advocating for a new social contract in which employee’s welfare, rights and social protection as well as the need for inclusion occupy centre space.

“On behalf of the labour movement in general, factors in our own midst which still inhibit taking everyone along, include the absence in our country, of a mandatory and genuinely national tripartite framework where both employer organizations and trade unions along with government can ventilate their concerns and any apparent demands for a better life for their members and improved working environment.”

Against this background, BFTU submitted that workers cannot be said to be represented when their view is not considered mandatory. Thus, BFTU argues, existing structures such as the Labour Advisory Board, NEMIC and HLCC are merely volitional in effect.

Consequent to the practice of acting alone many employers, probably emulating government are bent on frustrating transparency and good faith engagement in the workplace, BFTU said. In most cases employees still find it hard to form and belong to trade unions without fear of reprisal by employers nor are employers keen to grant the institutionalization of Work or Industrial Councils in order to freely share and exchange information for amicable resolution of disputes.

“It must be mandatory for employers to disclose to employee representatives all the relevant information including financial, which would assist employees in their bargaining with the employers. In spite of this we are aware of many unscrupulous employers who withhold such critical information under different pretexts.”

BFTU further indicated that the Department of Labour and Social Security remains seriously under resourced to dispose labour disputes lodged with them, and to ensure regular labour inspections and compliance with relevant labour laws.

Furthermore, the absence of an integrated national social security policy with many and scattered policy administrators goes to show how far Botswana is in meeting those deserving of the social protection assistance despite trade union’s shared pledge not to leave anyone behind, BFTU said at the commemoration of May Day.

The Union, urged government to consider introducing the National Occupation Pension Fund so as to assist those employees who find themselves in the lurch because of automation or other unforeseen factors resulting in job loss.

“We further demand a reviewing of laws and provisions relating to insolvency and or liquidation to protect employees. It is the Federations considered view that social dialogue in the present dispensation is merely cosmetic and incapable of fully aiding the implementation of the SDGs and ensuring we leave no one behind.”

“We therefore propose that a National Tripartite Council Policy Forum be set up which will involve government, employer organizations and trade unions to duly reflect on the social and economic challenges affecting the nation and accordingly make recommendations.”

BFTU expressed satisfaction in the reassurance by President Mokgweetsi Masisi that a Constitutional Review is forthcoming.

“Critical among the issues that come to mind speaking of the review is the autonomy of Parliament especially the amendment of section 90 and 91 which relate to the ability of Parliament managing its own affairs and the power to dissolve parliament which is currently vested in the person of the President.”

Ten years ago, Botswana rose to an awakening when 90 000 public sector employees took to the streets after negotiations with their employer, government, reached hard point and collapsed. The effect was a strike that was to impact on the industrial relations landscape in a manner that was unprecedented.

BFTU says the strike knocked some sense in those who underrated the power of workers’ unity and the effectiveness of industrial action as tools for bargaining with employers and the powers that be. Learning at a cost, BFTU acknowledges that consultation and workers’ education including on the processes of the strike are very critical.

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Is Ralotsia a DIS target?

12th May 2021
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Hell broke loose back in 2018 when Botswana Television (Btv) Broadcasting Officer, Gaolaolwe Ralotsia, son to former cabinet Minister, Patrick Ralotsia, started to make sound statements and reported the rampant corruption happening at the National Broadcaster spearheaded by a cabal of procurement officers.

Ralotsia’s actions have put him in trouble with the mob which is working in cohorts with intelligence agents in covert operations, according to information gathered by this publication.

Tragic or coincidence, fast forward 2018, Ralotsia’s workstation computer, a government Central Processing Unit (CPU) black in colour went missing in what is alleged to be the work of Directorate of Intelligence and Security (DIS) covert operations.

The computer was reported at Gaborone West Police Station and WeekendPost is in possession of an abstract from the police record involving burglary and theft and or loss dated 09/10/2018. Up to date there has never been any arrest and the case is still under investigations at least according to the document.

This is despite the fact that Ralotsia who has now become DIS ‘prey’ has his life under illegal surveillance.

Early last year, the National Health Lab in Gaborone through a report which was sanctioned by the Directorate of Corruption and Economic Crime (DCEC) confirmed his worst fears that there were attempts to poison him.

Two samples being a supposedly PET coke bottled and a plastic bag containing apparently home baked scones were presented. The scope was to attempt to determine if there is a case for worry of malicious or criminal poisoning.

In view of these suspicions, samples were treated as potentially hazardous and handled with utmost care. A series of microbiological and chemical rudimentary tests was devised since there is no cheap and widely available method.

According to the report, due to the nature of the work, the work is being done in utmost confidentiality and this reduces the progress and hampers the sourcing of some needed materials without suspicion. Thus progress was and is extremely slow.

In conclusion the report in view of the results from the spectrophotometry and the refractometer reading, they are convinced to a large extent that the supplied specimens were deliberately contaminated with ethylene glycol or related compounds, also called glycol which is the main ingredient of a vehicle anti- freeze. It is fairly common and not scent and therefore makes sense as a poison tool in sweet foods or drink.

Glycol mode of poisoning is to induce oxalate crystals in the kidneys leading to irreversible renal failure and ultimately death.

WeekendPost is also in possession of a complaint letter which Ralotsia wrote to The Intelligence and Security Tribunal through the Register of the High Court of Botswana this week. The letter references complaint to grievances by an officer of the Directorate- Peter Magosi.

The letter is addressed to the Chairperson of the Tribunal as detailed in Section 32 (2) of the Intelligence and Security Service Act Chapter 23:02. This according to the author follows months of investigations owing to illegal surveillance, unauthorised access to computer systems and invasion of privacy.

“The DIS has used access previously granted to investigate myself to carry out an illegal systematic monitoring and tapping of my phone calls, communication and general surveillance for personal gain as directed by the Director General Peter Magosi since mid-2018 to date,” the letter said.

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Ralotsia also wrote that the intelligence unit has on several occasions analysed troves of data to form an intimate picture of his life, relationships and movements. He reports that on three occasions, the DIS illegally submitted data gleamed from his personal communications to The Voice newspaper for publication.

“Graphics to that effect had already been prepared,” he stated.

According to Ralotsia, there has been attempts by the DIS to also incriminate him. He says on or around the 16th February 2020, the DIS with the help of some members of Botswana Police Services (BPS) attempted to lure him into a sexual trap and frame him for rape using a certain woman, very close to him who is also their agent.

This came a few months after they tried to plant drugs on him on his trip to Francistown in order to incriminate him.

A divorcé now, Ralotsia also submit that the DIS instigated a feud in his family that ended in his divorce.

“Throughout 2019, the DIS has shared with my ex-wife while still married incriminating sensitive personal data, some of it more than a decade old. A female agent named X (names withheld) was the link. The aftermath subsequently led to our divorce. The DIS continued to use my ex-wife to attempt to entrap me in some form of wrong doing. As such, I have not seen my children in over a year,” he said.

Ralotsia said on or around the end of March 2020, he became aware of successful attempts to clone his sim card by the then his ex-wife with the help of the DIS and an employee of Orange Botswana based in Jwaneng (names withheld).

The man constantly on the run said the DIS also recruited a human resource officer from the Department of Broadcasting Services to copy and deliver to them his file under her custody as an HR officer.

He reports that officers from the spy agency have on numerous occasions gained access to his place of residence, taken pictures, intimidated and at one point kidnapped and threatened the occupants.

“In one incident, four men wielding guns arrived in a white VW Amarok pickup truck. Their threats revolved around my feud with them and an open letter I had written to the President,” he said.

“The DIS mostly uses my mobile devices to keep track of my movements. On the 17th April 2021, I had left all my devices in the boot of a vehicle in Kanye. I had then driven back to Gaborone and stayed indoors. On Tuesday 20th April, just after 1530hrs, my companion was about to leave the house when Peter Magosi driving a silver Jeep registration B 660 AYP arrived at the gate. This was consistent with their modus operandi. She called me out and that is when Peter Magosi panicked and recklessly sped away. There is a picture of his vehicle to that effect.”

Ralotsia also reported Magosi for abuse of office and failure to carry out crime busting duties.

He said on 14th February 2020, he met with Peter Magosi at around 1100hrs. This was just a follow up meeting after numerous telephone communications.

The objective was to brief him about the disappearance of the CPU, the various attempts to cause harm or incriminate him by some of his agents and to report to him in person, the rampant corruption happening at the Mass Media Complex spear headed by one officer (names withheld).

He alleges that after the meeting Magosi used the information he got from him that he is onto them.

“I later discovered that the DIS is nothing but a cess pool of corruption, offering protection to the corrupt elite.”

According to Ralotsia, it is now common for cases involving the DIS not to be dealt with or unfairly dealt with because they have capabilities and willing partners being the BPS to make everything disappear.

“I am however under no illusion that the tribunal will do what is necessary to end this greed of thieving and rule bending by members of the DIS and their friends. I am however prepared to go public with the full details if necessary,” ends the letter.

WeekendPost is also in possession of copies of WhatsApp messages between a DIS agent only known as Jerry and a female known as Phatsimo who is a well-known informant.

The woman asked Jerry about her payment after doing a job for them to incriminate Ralotsia. In one of the messages Jerry is quoted saying, “Hey gorgeous, I will push for your payment. Am on leave but will link you up with someone at the office. Anyways, I still need more information on your guy, these days he seems to have covered his tracks very well, I can’t make a breakthrough on that issue you mentioned, we tried everything even with his computer we couldn’t find anything to prove that” (sic).

In her response Phatsimo wrote; “What more do you need, this has been dragging for too long and am not getting the money I was promised, but I had budgeted for that. Mme kana gone jaana it’s the perfect time to get to him, he just divorced, he is messed up and spends most of the time going to the farm, they are doing all they can to cover up for their motokwane thing. You guys are just too slow, he must be way too ahead of you, that one is too intelligent. But don’t worry I will use my charm to get to him, just tell me what to do and it will be done, hes got soft spot for me remember. I just want to get over and done with him, I want to see him go down. Oh, here are his other numbers that you can tap on ……” (sic).

In his response Jerry, “One of our guys at work was helping the wife to track his whereabouts and she was paying him so well, looked like the wife had everything under control. And one of your home girls is also helping us with baiting him, looks like Ralotsia is trying to try his luck on the lady, so she should also be able to help” (sic).

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