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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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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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Khato Civils fights back, dares detractors

23rd November 2020
Khato-civil

CEO of Khato Civils Mongezi Mnyani has come out of the silence and is going all way guns blazing against the company’s adversaries who he said are hell-bent on tarnishing his company’s image and “hard-earned good name”

Speaking to WeekendPost from South Africa, Mnyani said it is now time for him to speak out or act against his detractors. Khato Civils has done several projects across Africa. Khato Civils, a construction company and its affiliate engineering company, South Zambezi have executed a number of world class projects in South Africa, Malawi and now recently here in Botswana.

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UDC petitioners turn to Saleshando

23rd November 2020
Dumelang Saleshando

About ten (10) Umbrella for Democratic Change (UDC) parliamentary candidates who lost the 2019 general election and petitioned results this week met with UDC Vice President, Dumelang Saleshando to discuss the way forward concerning the quandary that is the legal fees put before them by Botswana Democratic Party (BDP) lawyers.

For a while now, UDC petitioners who are facing the wrath of quizzical sheriffs have demanded audience with UDC National Executive Committee (NEC) but in vain. However after the long wait for a tete-a-tete with the UDC, the petitioners met with Saleshando accompanied by other NEC members including Dr. Kesitegile Gobotswang, Reverend Mpho Dibeela and Dennis Alexander.

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