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BPOPF pushes arbitration in P400 million trailblazer

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.” 

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Khan: Boko, Masisi are fake politicians

18th January 2021
Masisi & Boko

While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.

Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.

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Ookeditse rejects lobby for BPF top post

18th January 2021
LAWRENCE-OOKEDITSE

Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.

Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.

Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”

“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.

He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.

He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.

According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.

There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.

Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.

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BDP cancels MPs retreat

18th January 2021
President Masisi

Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.

“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication.
The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.

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