Capital Management Botswana (CMB) is playing hardball with Botswana Public Officers Pension Fund (BPOPF) following the High Court’s rejection of an application by Non-Bank Financial Regulatory Authority (NBFIRA) through which it had wanted to appoint a Statutory manager (Peter Collins) over CMB.
The Partnership Agreement between BPOPF and CMB gives the latter a trailblazer status because they are likely to be the first company to be get over P400 million from a ‘partner’ with little sweat. BPOPF had issued an Arbitration Notice in a bid to recover over P400 million whose whereabouts have not been disclosed and it belongs to the 150 000 pensioners of the Botswana public service.
On 14 May 2018 BPOF lawyers wrote to the Botswana Institute of Arbitrators (BIA) for intervention after CMB failed to honour the Arbitration Notice within the recognized 20 days. CMB has instead made hard demands on the part of BPOPF. “The 20 day deadline has passed. Despite BPOPF having engaged with CMB and with the statutory manager who was appointed to CMB, CMB has, to date, neither accepted the arbitrators proposed in the Arbitration Notice, nor has its suggested any alternative arbitrators.
CMB has, in court papers, suggested that an arbitration should be held in the United Kingdom, but it seems to us that the terms of the Partnership Agreement are clear. CMB have not raised any formal dispute in relation to the forum of arbitration and this would, in any event, be a dispute as defined in the Partnership Agreement which would need to be dealt with, perhaps as a preliminary issue, at an arbitration in Botswana. In any event, the Partnership Agreement does not require that the BIA be instructed by both parties but merely requires that the BIA appoint the Arbitrators if the parties have not agreed within 20days,” wrote BPOPF lawyers, Werksman Attorneys.
BPOPF has asked the Botswana Institute of Arbitrators to appoint three arbitrators in accordance with the terms of the Partnership Agreement. They want the arbitrators to be Senior Counsels to preside over the arbitration in respect of the disputes declared. “The subject of the arbitration is a matter of national importance notably given that the BPOPF represents more than 150 000 pensioners of Botswana public service and that more than P400 million is at risk. It is urgent that the Disputes be resolved efficiently.
We therefore look forward to your prompt response,” further stated the BPOPF lawyers. BPOPF had suggested the names of Mr Virgil Vergeer; Mr Kwadwo Osei Ofei; Ms Pepsi Sibanda; and Mr Sifelani Thapelo as possible arbitrators. BPOPF Acting Chief Executive Officer, Moemedi Malindah had indicated that any three of the listed four could be selected to act as arbitrators.
The Partnership Agreement states that “Any dispute between any of the Parties arising in connection with this Agreement or its subject matter shall be submitted to an finally resolved by arbitration in accordance with arbitration rules of Botswana Institute of Arbitrators (BIA)…” BPOPF entered into a Partnership Agreement with Capital Management Botswana (CMB) Limited in November 2014. CMB was a general partner of the Botswana Opportunity Partnership (the ‘Fund’) for the period commencing on its formation of the Fund and terminating on 1 December 2017 by BPOPF who are the sole Limited Partner of the Fund.
The Disputes which are to be taken for arbitration arise from the fact that CMB, which has been terminated as General Partner (GP) is yet to transfer the Fund Assets held by it in its own name to the Fund hence BPOPF wants to ensure that all of the Fund Assets are registered in the name of the Fund. Furthermore BPOPF wants CMB to handover to the newly appointed General Partner, Viltry (Proprietary) Limited.
BPOPF is also demanding all documentation relating to the Fund and to each of the Fund’s Investments that are in its possession and which ought to be within its possession in terms of the Partnership Agreement both as its erstwhile General Partner and erstwhile Manager. In addition, BPOPF demands the details of each service provider to the Fund as well as each service provider to CMB as the erstwhile General Partner and the erstwhile Fund Manager in relation to the Fund, including the name of the service provider, the contact details of the service provider, a list of deliverables pending issue from each service provider (if any)), the service level agreement concluded with that service provider and the correspondences with each service provider.
The Pension Fund also procures that any persons nominated and appointed by CMB to represent the Fund on the Board of any Portfolio company pursuant to the Partnership Agreement resign from such office with effect from the date of the Removal Notice and authorize General Partner to nominate and appoint replacement with effect from the date of Removal Notice.
“On 18 December 2017, BPOPF wrote to CMB demanding confirmation of, amongst other things, the identity and contact details of the person or entity to whom BPOPF’s interest in the Fund had purportedly been sold and the purchase price. As at date of this notice, CMB has not complied with these demands. The replacement GP requires the requested information in order to discharge its fiduciary obligations to the Fund, and it is accordingly, in terms of common law and under the Partnership Agreement, entitled to the information and documentation demanded in the Removal Notice as well as the letter dated 18 December 2017,” further writes Moemedi Malindah, Acting BPOPF CEO.
WHY BPOPF SHOULD BEG FOR ARBITRATION
The BPOPF invested the sum of P477 million in the Botswana Opportunity Partnership (BOP) to be managed by CMB in terms of the BOP agreement between the two. CMB then disposed of the investment and only paid P50 million to BPOPF. The BPOPF has tried to tell the court that a balance of P400 million was at stake. But Judge in the NBFIRA case, Justice Motumise has argued that “the question before me is not the recovery of the P400 million or to secure it, wherever it is and thus to protect it from loss. In fact, I have not been told where it is so that I can secure it from such loss. What I am called upon to do, in these proceedings is to decide whether to confirm the appointment of a statutory manager over CMB.”
The money at stake was an investment made in terms of the BOP Agreement which states that: “The General Partner shall be entitled, and is hereby irrevocably authorized by defaulting Limited Partner, to dispose of the Defaulting Limited Partner’s interest in Botswana Opportunity Partnership to one or more third parties at such price and on such terms and conditions as the General Partner, in its sole and absolute discretion, deems fit, provided that the General Partner first offers such interest, at the same price and on the same terms, first to the non-Defaulting Limited Partner pro rata to their respective Capital Commitments and then (if any remains) to the non-defaulting Fund LPs of any Parallel Fund pro rata to their respective capital commitments to such.”
The Agreement further reads: Except as provided in clause 26 or any loss suffered due to any grossly negligent, reckless, fraudulent or willful misconduct activities by the General Partner, neither the General Partner nor the any of its affiliates shall be liable for the return of the Capital Commitments of any Partner, and such return shall be made solely from available Fund Assets, if any, and each Limited Partner hereby waives any and all claims it may have against the General Partner or any Affiliate thereof in this regard.”
It is evident that BPOPF authorized the disposal of its investment or interest under the agreement and the Agreement itself prescribes that resolution of all matters and or claims is through Arbitration. Some BPOPF insiders question the decision to sign such an Agreement and are wondering where the Board and the management were when such a deal slipped through!
WHY THE P400 million is GONE Except as provided in clause 26 or any loss suffered due to any grossly negligent, reckless, fraudulent or willful misconduct activities by the General Partner, neither the General Partner nor the any of its affiliates shall be liable for the return of the Capital Commitments of any Partner, and such return shall be made solely from available Fund Assets, if any, and each Limited Partner hereby waives any and all claims it may have against the General Partner or any Affiliate thereof in this regard.”
Stanbic Bank Botswana Quarterly Economic Review indicates that Botswana will fail to meet some of its Vision 2036 targets, particularly unemployment reduction and reaching high-income status.
The report says this is mainly due to the slow economic growth that the country is currently experiencing. This Quarterly Economic Review focuses on the 2020 Budget Speech.
The first paper reviews the entire budget with its key observations being that this budget is prepared as prescribed by the Public Finance Management Act; the priorities it seeks to address are drawn from Vision 2036 and the eleventh
The 2020 budget Speech, which was the maiden speech by the Minister of Finance and Economic Development, Dr. Thapelo Matsheka, and the first after the 2019 general elections, was delivered to Parliament on the 4th of February 2020.
It has been well received by the labour unions, business community, and the public at large as well as international organisations such as the International Monetary Fund (IMF).
It mainly derived its support from key facets including, emphasis on changing the business-as-usual approach to development; outlining the transformation agenda; fiscal reform that minimizes the negative impact on economic development and human welfare, competiveness and the decision to implement the 2019 negotiated and agreed public sector.
The budget’s progress review shows that economic growth was consistent with the NDP 11 projections, with growth of around 4 percent. At this growth rate, the country would neither ascend to a high-income status nor reduce unemployment towards the Vision 2036 target of a single digit.
Simple calculations of this review confirm that the economy will need to grow the Vision 2036’s target of 6 percent over the next 16 years for per capita income to increase from around USD 8,000.00 to above USD 12,000.00 in current prices.
Further, the population is anticipated to grow by only 2 percent per annum.
For this reason, the focal areas for the forthcoming FY’s budget include measures to increase economic growth towards an average of 6 percent per annum.
Economic diversification is reportedly progressing fairly well. The report says, the share of the non-mining private sector in value added has risen to 66 percent in 2018 from to 63 percent in 2015.
The sectoral pattern of growth showed that the performance of services sector (particularly transport & communications, trade, hotels & restaurants, and finance & business services) has been the silver lining and that of mining sector was subdued whilst the utility sector disappointed.
The drive towards the service sector of the economy, especially to low-productivity activities (tourism, public administration, wholesaling and retailing) does not bode well for the country’s development aspirations.
In the previous versions of this Quarterly Review, it was noted that there is need for the rethinking of economic diversification. Since the country’s domestic market is small, it is inevitable that economic diversification not only focus on broadening the product mix, but also the composition of exports and markets.
This understanding of economic diversification has not been embraced by this year’s budget. Consequently, Botswana’s exports are still overwhelmingly diamonds, which means that the rest of economic sectors are still highly dependent on foreign-exchange earnings from diamonds. Thus, “the transformation programme requires a review of the country’s entire ecosystem”.
The budget review of the economic context also depicts that an economy with positive medium-term prospects, with growth expected to recover to 4.4 percent in 2020 from the expected growth of 36 percent in 2019 largely due to faster growth of services sectors and, thereafter, to slow-down to 4 percent in 2021.
These projected growth rates are comparable to those of the IMF staff’s baseline scenario of 4.2 percent in 2020 and 4 percent in 2021. Thus, the business-as-usual scenario produces growth rates that are still too low to achieve Botswana’s development objectives and create enough jobs to absorb the new entrants into the labour market.
Trade tensions between the two major markets for diamond exports, viz., the United States of America and China, is one of the factors that are cited as contributing to, indeed, undermining not only the domestic growth, but also the fiscal position.
Another notable downside risk to both global and domestic growth is outbreak of the coronavirus in China around January 2020. This has been declared as a global health emergency. In an attempt to contain the spread of the novel coronavirus pneumonia, the Chinese authorities have ordered city lockdowns and extended holidays, of course, at the expense of near- term economic growth, according to the new Stanbic Bank Botswana report.
According to Nomura Holdings Inc., fewer migrant workers returned for work than in previous years and business activities have been slow to pick up. The havoc wreaked by the virus on the world’s second largest economy is likely to spill over to the global economy. In fact, it has resulted in a glut in crude oil and, thereby placed oil markets into a contango, i.e., a market structure where near-term prices trade at a discount to future contracts.
It also presents significant risks one of Botswana’s main drivers of economic growth, diversification and foreign exchange earnings. According to the Financial Times (February 13, 2020), Chinese tourists spent $130 billion overseas in 2018. Regardless of whether the growth materializes, the projected domestic growth rate would not transform the economy to a high-income one.
Progress towards reduction of unemployment, to a target of single digit, and poverty and achieving inclusive growth has also been relatively slow, the Stanbic Bank Botswana Review says.
Ministry of Presidential Affairs, Governance and Public Administration (MOPAGPA) has through the Office of the President (OP) proposed to avail Orapa House for use by private training institutions as well as research institutions involved in the area of technology development.
For a very long time the monumental building located in the heart of the city has been a white elephant, despite government purchasing it for nearly P80 million from De Beers in 2012.
However, government has now identified a productive use for the iconic building. “The overall vision is for the building to be transformed into a hub for digital technology research and development to be carried-out by institutions, such as; Limkokwing University, BIUST, BITRI and other relevant stakeholders.”
The decision was taken as government traverse a new path of transforming the economy from a mineral led economy to a knowledge based economy through the promotion of research and innovation. However, the facility will need major maintenance to be carried-out in order to meet the requirements of the proposed change in use.
“The work will include provision of laboratories, work stations, production areas and seminar rooms; audio visual centre, high speed internet connectivity, exhibition areas and offices,” reads the proposal note for the development.
These developments will be done through the refurbishment and maintenance of the main building, workshop, and ablution block, gate house, parking area, grounds, and access control and security service.
“There will be minimal modifications to the structure as it stands. The project is estimated to cost approximately P50, 000, 000,” says the report. In this regard, it is said, the initial scope of the OP facility will be modified to accommodate the envisaged digital technology research and development hub.
With funds needed to improve the building, OP has requested that; “the 2020/21 annual budget provision for Orapa House will need to be increased by P37,500,000 from P2,500,000 to P40,000,000 to kick start the maintenance works.” Funds will be sourced from the projects that have been delayed due to Covid-19 protocols during the 2020/21 financial year.
The building has been a thorny issue for government for years. Initially, OP was expected to move there but the move never materialised. At one point it was a question of whether the Office of the President and the Ministry of Finance and Economic Development were planning to override a decision by Parliament which rejected the proposal to buy Orapa House under the belief that government may be buying its own property. The building was to be bought at a negotiated cost of P79 million.
Again in 2012, Government had wanted to buy Orapa House for a negotiated P79m but the Finance and Estimates Committee of Parliament had rejected the request because of the inconsistencies realised in the supporting documents of the proposed procurement. The valuation of the building was put at P74 million.
The Ministry of Lands and Housing had initially offered De Beers P73, 000,000 as the purchase price. However, De Beers countered with P85, 000,000. On negotiation and converging of the minds, the selling price was finally agreed at P79, 000,000.
Auditor General, Pulane Letebele, has expressed discontentment at the worrying and deteriorating state of brigades in the country.
In an audit inspection which was carried out at Tshwaragano Brigade in Gabane, a number of observations showed weaknesses and shortcomings in the conduct of the financial affairs of the institution.
According to Letebele’s report, former students of the brigade had been engaged to carry out maintenance works on the school premises, comprising of painting, tiling, plumbing and electrical works, which covered the period from July 2017 to June 2018.
Although the agreed maintenance period had elapsed, the works had not been completed because of unavailability of funds and this situation had persisted up till the time of inspection in November 2019.
Auditor General says arrangements should have been made in time for funds to be available to complete these relatively minor works even before the works commenced.
Various contractors had been engaged for clearing the bush and for the supply of concrete stones, pit and river sand and hiring equipment for digging the trench towards the construction of an auto mechanics workshop, the report said.
It stated that the cost of services and supplies provided totalled P117 949.80. However, despite the services and the supplies having been paid for, the construction works had not commenced for a long period afterwards, resulting in the trench filling back in.
The audit inquiries had not elicited satisfactory responses as both the institution and the Ministry had not accepted the responsibility for the project, although orders for the provision for the supplies had been made. For their part, the Ministry had stated that they had sub warranted funds for the purchase of porta cabins.
Letebele indicated that it is therefore confusing that a project which is critical to the functioning of an institution such as this one would commence without a well-defined plan.
Furthermore, the accounting and maintenance of records for the supplies items were not of the standard prescribed by the Supplies Regulations and Procedures in that the supplies ledger cards, the main accounting records for Government assets, were not properly maintained for the recording of receipts and issues.
This had resulted in significant discrepancies between physical and ledger balances, while in other instances the supplies items had not been recorded at all.
The report says 24 of the 91 new computers found in the computer laboratory at Kumakwane ABC campus were not recorded anywhere, as were the other computers in the storeroom which could not be counted due to the disorderly storage conditions.
The institution had entered into a contract agreement with a security company for the provision of security services at Tshwaragano Brigade, ABC and Horticulture campuses at Kumakwane for a 2-year period which ended in June 2018, WeekendPost learnt.
After the contract expired in June 2018, an extension was granted till the 30th September 2018. Since then, there has been no security service coverage for the institution to-date. According to Auditor General, in the face of prevailing crimes, it is of paramount importance that government properties be protected by provision of security services at all times.
At Tlokweng Brigade, it was noted that the kitchen staff were working under difficult conditions as the kitchen facilities and equipment, such as the cold room, tilting pot, food warmers and solar power for hot water were dysfunctional. The kitchen roof was leaking and men’s restrooms was not working. All these need to be brought to a reasonable and functional state of repair.
The kitchen staff should use a purpose-designed Rations Ledger for the recording of receipts and issues of foodstuffs to reflect the usage of those items. As far back as 2014 the Department of Buildings and Engineering Services had found that the house occupied by the bursar was uninhabitable on account of structural defects, the report said.
A site visit during the audit had established that the house was indeed unfit for occupation as there were cracks on the walls, power switches were not working and the roof was leaking. On a sadder note, there were a number of finished items of clothing, such as dresses, shirts, and jackets from students’ practical exercises from the Fashion Design Textiles Workshop.
Auditor General shared her take on this, saying: “I have not been able to ascertain the policy on the disposal of products from these practicals. A trace of 103 green acid-proof overalls which had been purchased in August 2018 had indicated that there was no record of these items having been recorded or issued, nor were they available in stock. I was not able to obtain any explanation for this situation.”
Kgatleng brigade was also audited and inspected by Auditor General who observed that the brigade has 26 institutional houses at Bokaa, both old campus and new campus. Some of these houses are very old and dilapidated, with two declared uninhabitable. The condition of the houses is a clear indication of lack of care and maintenance of these properties.
At the time of the audit, there was no contractor engaged for the provision of security guard services at the new campus, after expiry of the previous one in July 2019. It is hoped that steps would be taken to safeguard the security of the premises and government properties against any acts of hooliganism.
In August 2019, there was a break-in at the electrical and at the plumbing maintenance workshops and a number of high value items, such as drilling machines, bolt cutters, spanners and cables, were stolen. The break-in and theft were reported to the police.
“However, at the time of writing this report I was not aware of the outcome of the police investigation, nor of any loss report submitted in terms of the Supplies Regulations and Procedures,” Letebele said.