Bakgatla Ba Kgafela paramount chief, Kgafela Kgafela II has told the commission of inquiry, which is investigating the succession of chieftainship Bakgatla in Moruleng that his jurisdiction over the tribe has been confirmed by the Constitutional Court.
When explaining his relationship with senior tribal leader in Moruleng, Kgafela indicated his powers in appointing a leader in Moruleng who ruled on behalf of the paramount chief of the entire tribe. “The correct relationship is that I am his senior, he is my junior as the Constitutional court and custom law says. It is a relationship of a master and a steward in the Bible. If you read the parable of the steward in the Bible, it provides the two answers.”
In the Mmusi Pilane vs Nyalala and others constitutional court judgment in 2012 said, although the villages that make up the traditional community are situated in South Africa, the traditional community recognises as their Kgosikgolo a traditional leader who lives in Mochudi Botswana. His deputy Pilane, administers the affairs of the community in South Africa, and is based in Moruleng.
“The point I am making is that where we sit here, we can go to great lengths trying to understand what the statutes say, but we have advantage of the fact that courts in South Africa have done the work for us, they have explained these things. I can only refer you to these judgments,” said Kgafela. Kgafela submitted before the commission that in the past when there were problems in South Africa, Kgosi Linchwe was called upon to come and deal with problems concerning the former chief, the late Tidimane.
And that likewise, in 2008 to 2016, the tribe in South Africa called upon the paramount chief in Botswana, being him, to exercise his powers to depose the regent, Kgosi Pilane of his duties as kgosi, as the latter violates the tribes’ human rights and refuses to account. “Members of the tribe, comprising Mr Thari Segale, Thari Pilane, Segale Pilane who demanded that should attend to South African issues and depose Kgosi Pilane because the latter violated the tribe’s human rights. So, members of the tribe here had asked me to do exactly as Kgosi Linchwe did in the performance of his role.
Baloyi then told Kgafela that there was evidence brought before them which suggested that Kgafela’s father, the late Paramount Chief Linchwe did not involve himself in Moruleng issues like he wants to, and that he only played a more ceremonial roleâ€• He was invited and consulted if there were major issues. However, Kgafela dismissed the issues that Linchwe did it ceremonially. “Look at the role he played around the Tidimane [Pilane] issue. It was not ceremonial but legal; he even interacted with all former leaders here which even led to appointment of Pilane. Pilane’s appointment is not ceremonial but a matter of law.”
He said while to some certain degree it could be true that his father may not have involved himself as he has in the affairs of Moruleng, “I can tell you why, even myself as I sit here, I would rather not be here. If I had somebody running the affairs of the tribe legally without a headache, I would rather be at the cattle post. We intervene only when things are not run properly; otherwise I would not be responsible. Once things are sorted out, we have proper administration and everything is in order, I will be free to attend other issues in life.”
Kgafela further told the commission that the BBK bogosi was clear in the court judgments and in history of South Africa. “My father played a key role in the independence of this country, him being in Botswana… if he wasn’t in Botswana at the time things would not be as they are today. So authorities in this country have known bogosi jwa Bakgatla such that it should not be an issue as to who Kgosi is and who can appoint who. His role in the struggle of the independence of SA is well known.”
‘My relationship with my uncle, Nyalala Pilane’
When asked to comment on his relationship with the senior chief in Moruleng, Pilane who according to the tribe custom is there in Kgafela’s place, Kgafela said, “Re na le bothata gone fa.”(We have a problem here). He decried that the problem they were having amongst Bakgatla was that Pilane was not performing the role of law amongst the tribe, but doing the opposite.
“If you ask what his role is, I will say, the role of the senior leader, that he has played in the tribe up to today is the very problems that you are seeing today. That is his role. We are here in this commission struggling about many things because of his role. The tribe is in disarray because of the events that have taken place. He is not fit and proper to hold public office, that is why I have accepted his resignation in 2012, and it stands,” he submitted.
The commission heard that the department of mining in South Africa comes to Pilane and makes arrangements to mine in the tribe’s farms without a consultation and he pockets the money. “This is a very painful injustice. A group of people supported by government come and mine our farms without consulting us, and no one listens to them when they complain. We are always litigating against mining companies and Pilane over what is rightfully the people.”
The commission heard that the role of a paramount chief ordinarily based in Botswana, is appointed and enthroned in accordance with the fixed procedure of tradition. He hunts a leopard and provides the pelt for the regiment of his father to prepare for the draping. On the appointed day the tribe converges at a kgotla to witness him being draped with the leopard to formalize his assent to the throne as the epic leader of the whole tribe wherever based, whether Botswana or South Africa or new territories that may be acquired under his leadership.
Once these traditional procedures have taken place, the throne becomes fixed upon who wears the leopard skin in terms of the customary law of Bakgatla in ancient traditions. He rules over the tribe in both Botswana and South Africa. This law is set out in judgments of South African courts including the Constitutional Court. It is settled law, according to Kgafela’s version.
“Presently the royal leopard of BBK is roped upon Kgafela II, and the roping took place in September 20, 2008. Now, the point that is important is that once enthroned, the paramount chief of BBK in Botswana assumes certain royal duties and obligations towards the tribe at large,” he submitted. The core duties, he said include to protect the human rights of the tribe, protect the tribe’s land and property, protect the tribe’s history, its heritage and destiny and unite the tribe and ensure peace and harmony amongst them.
He stated, the paramount chief is obligated to do the right thing in every situation aiming at all times in producing the best results for the tribe: Accordingly whenever issues arise from the tribe, either in Botswana or South Africa touching on any of the duties highlighted, the tribe may call upon the paramount chief in Botswana to exercise his traditional powers in their favour by performing his duties aforesaid, the commission heard.
“The paramount chief has been performing this role since he was enthroned in 2008 and we would submit that the developments of this commission and events on the ground vindicate the answers to this point. What has been happening in the past six years since I came here is exactly the role which the premier asks about.”
“We have been all over South Africa with this role, we have reported crimes which are taking place to police, courts and everywhere you can think of. The soles of our shoes are worn out and we are even limping, because of this journey that we’ve been taking to all over performing this role,” he submitted.
My powers and procedures to appoint a leader in South Africa
The commission heard that the paramount chief in Botswana appoints a person of his choice to rule over the tribe on his behalf. These are prerogative powers bestowed upon the paramount chief by tradition and law, he noted. “And I have exercised those powers in favour of the tribe; I have exercised those powers to dethrone Kgosi Pilane from his seat as a Kgosi in 2012, and evidence for that is Pilane’s retirement letter and my acceptance of that letter, and the history of events leading to those correspondences.”
The tribe is free to decide whether they want me or not
According to Kgafela, if the people in Moruleng do not want to be ruled by the paramount chief in Botswana anymore, they have that right. “My father told them in 1994 that you have the right to go your own way. But you must go to the kgotla, decide on that right and let us know. But, they said, NO…we remain one! And it is stated in the resolution that they remained one,” he said.
Professor Moleleki asked Kgafela why the paramount chieftainship was hereditary while senior traditional leadership was not, among BBK tradition. And Kgafela’s response was that, “The constitution of South Africa recognises traditional communities and their customs, and when you go to the Act, there is a common theme that one thing must be done according to customs and traditions of that community. The customs and tradition of BBK community may be different from other customs, but it is recognized. And the way it is with us may be unique, it’s such that BBK tribe live in two countries.”
He stressed that borders came only yesterday and that they were not their doing. “The point I am making is that where we seat here, we can go to great lengths trying to understand what the statute say, but we have advantage of the fact that courts in SA have done the work for us, they have explained these things. I can only refer you to those judgments. This arrangement of BBK is unique, it’s not our doing, but it is what we are settled with. ,” said Kgafela
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.”
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).
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.