High Court Judge, Zaine Kebonang has avoided making a ruling on technical legal issue in a matter in which Bothakga Burrow is challenging the Ministry of Transport and Communications, Department of Roads’ decision to terminate its consultancy services in the Charleshill-Ncojane road construction.
Bothakga was engaged by government to provide consultancy services to Zac construction which has been awarded a multi million tender to construct road between Charles hill and Ncojane in the Gantsi district in Botswana. Zac Construction was awarded the tender on 26th November 2013 in the tune of P 436 million; to be completed in 36 months (designing and building). Bothakga Burrow Botswana’s contract is worth P40 million.
The main case of termination of contract is currently before Justice Terrence Rannowane who will deliver a judgement on May 25. In the oral arguments in the technical matter concerning the nitty gritties of the contract this week Justice Kebonang insisted that he is constrained to make any ruling which can have a bearing in the matter as parties are eagerly waiting for the main ruling by Justice Rannowane.
“I am trying to establish whether there is a dispute for this one but it is not coming out clearly. Also bear in mind that I cannot make a ground breaking ruling on this case precisely to avoid conflicting or contradicting judgements on my part and from the other Judge,” Kebonang highlighted to parties appearing before him in the matter.
In the legal technical matter, Bothakga Burrow was represented by Moemedi Tafa from Armstrong Attorneys while Olayemi Aganga sat in for the Attorney General. Representatives from Public Procurement and Asset Disposal Board (PPADB) being Cindy Motlalepula and Keneilwe Modise did not join them in the prevailing matter.
When listening to the lawyers’ arguments, Justice Kebonang express his worry that government terminated Bothakga burrow’s contract but failed to remove them from contract site saying that they remained at the site means they were trespassing. He also blamed Bothakga Burrow for not interdicting the termination at court while they had the freedom to do so. “So, both of you are wrong,” Justice Kebonang insisted to the parties during deliberations.
He also maintained that: “there cannot be a principal judgement here because there is another Judge doing merits and demerits of the main case.” Speaking to Weekend Post briefly outside court for purposes of background, State attorney Aganga said the case concerned itself with technical legal issues. Aganga pointed out that “it’s a technical issue that involves certain legal terminology in the contract that has been terminated.”
According to Aganga, there were some interpretation issues; and that they viewed certain issues differently from Bothakga Burrow. But during court proceedings, Kebonang stated that what PPADB and government did is already done and no need to say who was right or wrong. Therefore, he wondered what his judgement would change if he releases an order. “I prefer the status quo to remain until the judgement under Justice Rannowane in May,” Kebonang said.
Representing the Attorney General, Aganga has previously asserted that the application by Bothakga Burrow should be dismissed as it doesn’t hold water. In the main case, earlier, Aganga is said to have highlighted that relations between Bothakga Burrow and the contractor, Zac Construction had become bitter to a point that the Ministry of Transport and Communication under Department of Roads elected to terminate Bothakga Burrow’ s consultancy services in the public interest.
He further is reported to have said delays in the work would result in substantial cost overruns which would cost tax payers. As of 16 February 2018 Bothakga Burrow Botswana has dragged the Ministry of Transport and Communications before court accusing it of unlawfully terminating its contract.
Permanent Secretary Kabelo Ebineng terminated BBB’s contract with effect from 16 February 2018 citing convenience on the part of the Employer or procuring entity. But Bothakga is arguing that the Ministry did not follow the correct procedure when terminating the contract and the PPADB agrees with Bothakga.
In January 2017, sixteen months after commencement of construction Zac or Zakhem complains to the Ministry of Transport citing conflict of interest on the part of the consultant, Bothakga Burrow. His views are such that the consultant has not been properly appointed and he threatens to stop taking instructions from the Consultant and requests that Bothakga Burrow be removed from the project. The then permanent secretary, Elias Magosi dismissed Zakhem’s allegations and warned him to abide by the contract which he would have defaulted on the contract.
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.
Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.
This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.
He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.
Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”
He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.
Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.
“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.
In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”
In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.
He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.” Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.
Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.
He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”
Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.
“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.
“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said. Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.
Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.