After being put under a restraining order by the Directorate of Public Prosecutions (DPP) recently, Kgori Capital has now launched a civil application challenging powers of the DPP.
In their filing notice filed before the court this week, Kgori Capital stated that, “The DPP does not have the requisite to institute this confiscation civil penalty application. The powers of the DPP are set out in the constitution of the Republic of Botswana at Section 51 A (3) (a), (b), (c) and (d). These powers are primarily and exclusively prosecutorial in nature.”
Kgori goes on to state that the powers do not include the institution of civil penalty order application in terms of the Proceeds and Instrumental of Crime Act. And that the sections which seek to clothe the DPP with the power to institute these proceedings are ultra vires the constitution to the extent that they seek the powers of the DPP beyond those that have been defined by the constitution. The sections, they contend are invalid and unconstitutional and of no force and effect at law. They urged the court to strike down the sections as unconstitutional and void.
DPP was granted the application of forfeiture of P10 million by Lobatse High Court Judge Nthomiwa last week. He stated he was relying on Section 35(3) of the Proceeds and Instruments of Crime Act, Cap 08:03. “The order relates to the credit amount of P10 million standing to the credit of Investment Account Number: 906 000 149 0058 held by Kgori Capital Botswana Kgori Capital with Stanbic Bank Botswana. The receiver shall take control of all property specified in the order pending the institution and finalization of proceedings for a Civil Penalty Order,” Judge Nthomiwa ruled.â€¨â€¨
He went on to stress that all persons with knowledge of this order were, other than as required and permitted by the order, prohibited from dealing with the said amount, “except in the manner or circumstances, if any, specified in the order”. The sum in question is a portion of the total credit balance of P30m standing to the same account as at January 22, 2018.â€¨â€¨An affidavit deposed by Director of Public Prosecutions (DPP), Stephen Tiroyakgosi states that the amount in question represents a reasonable estimate of the value of benefits and incidental expenses derived by Kgori Capital as a result of a multiple serious related criminal activities.
The offences include cheating the public revenue; abuse of public office; obtaining by false pretences and money laundering.â€¨â€¨The court heard that Kgori Capital had over a period of 10 months, debited to the Kgori National Petroleum Fund Account held with Stanbic Bank the total amount of P10m ostensibly as management fees contrary to the consultancy agreement. The consultancy agreement is such that Kgori Capital could only benefit as a sub-contractor with whatever fees it might be entitled to, claimable from Basis Points Capital Botswana Limited from the consultancy price.
“By paying itself the so called management fees from the Kgori National Petroleum Fund account, Kgori Capital breached the National Petroleum Fund and diverted to itself the said P10m. As investigations are continuing, this figure is likely to change, especially at the time of making of the substantive order,” states Tiroyakgosi in his affidavit.â€¨â€¨It is said that from March 7, 2016 to December 14, 2017, various debits were entered against the National Petroleum Fund account No: 906 000 208 5742 held with Stanbic Bank, with the amounts credited to the Kgori Capital bank account No: 906 000143 6320 held by Kgori Capital with Stanbic Bank Botswana allegedly as management fees in payment to Kgori Capital.
â€¨The information before court further suggests that the investigations have revealed that the National Petroleum Fund consultancy agreement had only Basis Points Capital as the only contracting party with Botswana government concerning the services that Kgori Capital purported to render and to be entitled to be paid for. “Kgori Capital could only render the services to government as a sub-contractor under the consultancy agreement, with all its fees only claimable from and payable by Basis Points Capital.
”â€¨â€¨The Department of Energy late last year withdrew all National Petroleum Fund monies and investment portfolios from respective banks and investment institutions. A communication from the Department of Energy stated that all proceeds into the National Petroleum Fund would now be deposited into the Government Remittance account held at Bank of Botswana. Furthermore, all commitments out of the Fund shall be routed through the Ministry of Finance and Economic Development for payment through the Government Remittance account.â€¨â€¨
The latest decision by government follows a series of events originated by a money laundering charge on one Bakang Seretse who was Managing Director of Kgori Capital is in his personal capacity implicated in a case involving P326 million which is perceived as thus far the leading financial scandal in monetary value. Bakang is accused alongside two others, Botho Leburu and Kenneth Kerekang. Alphonse Ndzinge is the new Kgori Executive Manager.
For so many years, Botswana has been trying to be a self-sufficient country that is able to provide its citizens with locally produced food products. Through appropriate collaborations with parastatals such as CEDA, ISPAAD and LEA, government introduced initiatives such as the Horticulture Impact Accelerator Subsidy-IAS and other funding facilities to facilitate horticultural farmers to increase production levels.
Now that COVID-19 took over and disrupted the food value chain across all economies, Botswana government introduced these initiatives to reduce the import bill by enhancing local market and relieve horticultural farmers from loses or impacts associated with the pandemic.
In more concerted efforts to curb these food crises in the country, government extended the ploughing period for the Southern part of Botswana. The extension was due to the late start of rains in the Southern part of the country.
Last week the Ministry of Agriculture extended the ploughing period for the Northern part of the country, mainly because of rains recently experienced in the country. With these decisions taken urgently, government optimizes food security and reliance on local food production.
When pigs fly, Botswana will be able to produce food to feed its people. This is evident by the numbers released by Statistics Botswana on imports recorded in November 2020, on their International Merchandise Trade Statistics for the month under review.
The numbers say Botswana continues to import most of its food from neighbouring South Africa. Not only that, Batswana relies on South Africa to have something to smoke, to drink and even use as machinery.
According to data from Statistics Botswana, the country’s total imports amounted to P6.881 Million. Diamonds contributed to the total imports at 33%, which is equivalent to P2.3 Million. This was followed by food, beverages and tobacco, machinery and electrical equipment which stood at P912 Million and P790 Million respectively.
Most of these commodities were imported from The Southern African Customs Union (SACU). The Union supplied Botswana with imports valued at over P4.8 Million of Botswana’s imports for the month under review (November 2020). The top most imported commodity group from SACU region was food, beverages and tobacco, with a contribution of P864 Million, which is likely to be around 18.1% of the total imports from the region.
Diamonds and fuel, according to these statistics, contributed 16.0%, or P766 Million and 13.5% or P645 Million respectively. Botswana also showed a strong and desperate reliance on neighbouring South Africa for important commodities. Even though the borders between the two countries in order to curb the spread of the COVID-19 virus, government took a decision to open border gates for essential services which included the transportation of commodities such as food.
Imports from South Africa recorded in November 2020 stood at P4.615 Million, which accounted for 67.1% of total imports during the month under review. Still from that country, Botswana bought food, beverages and tobacco worth P844 Million (18.3%), diamonds, machinery and fuel worth P758 Million, P601 Million and P562 Million respectively.
Botswana also imported chemicals and rubber products that made a contribution of 11.7% (P542.2 Million) to total imports from South Africa during the month under review, (November 2020).
The European Union also came to Botswana’s rescue in the previous year. Botswana received imports worth P698.3 Million from the EU, accounting for 10.1% of the total imports during the same month. The major group commodity imported from the EU was diamonds, accounting for 86.9% (P606.6 Million), of imports from the Union. Belgium was the major source of imports from the EU, at 8.9% (P609.1 Million) of total imports during the period under review.
Meanwhile, Minister of Finance and Economic Development Thapelo Matsheka says an improvement in exports and commodity prices will drive growth in Sub-Saharan Africa. Growth in the region is anticipated to recover modestly to 3.2% in 2021. Matsheka said this when delivering the Annual Budget Speech virtually in Gaborone on the 1st of February 2021.
He said implementation of the African Continental Free Trade Area Agreement (AfCFTA), which became operational in January 2021, could reduce the region’s vulnerability to global disruptions, as well as deepen trade and economic integration.
“This could also help boost competition and productivity. Successful implementation of AfCFTA will, of necessity, require Member States to eliminate both tariffs and non-tariff barriers, and generally make it easier to do business and invest across borders.”
Matsheka, who is also a Member of Parliament for Lobatse, an ailing town which houses the struggling biggest meat processing company in the country- Botswana Meat Commission, (BMC), said the Southern African Customs Union (SACU) recognizes the need to prioritize the key processes required for the implementation of the AfCFTA.
“The revised SACU Tariff Offer, which comprises 5,988 product lines with agreed Rules of Origin, representing 77% of the SACU Tariff Book, was submitted to the African Union Commission (AUC) in November 2020. The government is in the process of evaluating the tariff offers of other AfCFTA members prior to ratification, following which Botswana’s participation in AfCFTA will come to effect.”
Women continue to shadow men in politics – stereotypes such as ‘behind every successful man there is a woman’ cast the notion that women cannot lead. The 2019 general election recorded one of Botswana’s worst performances when it comes to women participation in parliamentary democracy with only three women elected to parliament.
Botswana’s former Minister of Health, Professor Sheila Tlou who is currently the Co-Chair, Global HIV Prevention Coalition & Nursing Now and an HIV, Gender & Human Rights Activist is not amused by the status quo. Tlou attributes this dilemma facing women to a number of factors, which she is convinced influence the voting patterns of Batswana when it comes to women politicians.
Professor Tlou plugs the party level voting systems as the first hindrance that blocks women from ascending to power. According to the former Minister of Health, there is inadequate amount of professionalism due to corrupt internal party structures affecting the voters roll and ultimately leading to voter apathy for those who end up struck off the voters rolls under dubious circumstances.
Tlou also stated that women’s campaigns are often clean; whilst men put to play the ‘politics is dirty metaphor using financial muscle to buy voters into voting for them without taking into consideration their abilities and credibility. The biggest hurdle according to Tlou is the fallacy that ‘Women cannot lead’, which is also perpetuated by other women who discourage people from voting for women.
There are numerous factors put on the table when scrutinizing a woman, she can be either too old, or too young, or her marital status can be used against her. An unmarried woman is labelled as a failure and questioned on how she intends on being a leader when she failed to have a home. The list is endless including slut shaming women who have either been through a divorce or on to their second marriages, Tlou observed.
The only way that voters can be emancipated from this mentality according to Tlou is through a robust voter education campaign tailor made to run continuously and not be left to the eve of elections as it is usually done. She further stated that the current crop of women in parliament must show case their abilities and magnify them – this will help make it clear that they too are worthy of votes.
And to women intending to run for office, Tlou encouraged them not to wait for the eleventh hour to show their interest and rather start in community mobilisation projects as early as possible so that the constituents can get to know them and their abilities prior to the election date.
Youthful Botswana National Front (BNF) leader and feminist, Resego Kgosidintsi blames women’s mentality towards one another which emanates from the fact that women have been socialised from a tender age that they cannot be leaders hence they find it difficult to vote for each other.
Kgosidintsi further states that, “Women do not have enough economic resources to stage effective campaigns. They are deemed as the natural care givers and would rather divert their funds towards raising children and building homes over buying campaign materials.”
Meanwhile, Vice President of the Alliance for Progressives (AP), Wynter Mmolotsi agrees that women’s participation in politics in Botswana remains a challenge. To address this Mmolotsi suggested that there should be constituencies reserved for women candidates only so that the outcome regardless of the party should deliver a woman Member of Parliament.
Mmolotsi further suggested that Botswana should ditch the First Past the Post system of election and opt for the proportional representation where contesting parties will dutifully list able women as their representatives in parliament.
On why women do not get elected, Mmolotsi explained that he had heard first hand from voters that they are reluctant to vote for women since they have limited access to them once they have won; unlike their male counterparts who have proven to be available night or day.
The pre-historic awarding of gender roles relegating women to be pregnant and barefoot at home and the man to be out there fending for the family has disadvantaged women in political and other professional careers.
Special Economic Zone Authority’s (SEZA) P126 million Master Planning of Pandamatenga Special Economic Zones Business Case, Urban & Landscapes tender is in court after one of bidders, Moralo Design challenged its disqualification from the tender.
SEZA is transforming Pandamatenga into an Agropolis which will combine modern farming with top notch industrial, residential, commercial and recreational land use. The project is measured at 137, 007 ha which comprises of 84, 500 ha for commercial production, 12 400 ha for the subsistence production, 107 ha will be for Agro-processing while 40 000 ha will be for the Zambezi Integrated Agro-commercial Project (ZIACDP).
In their court papers, Moralo Designs, represented by Jones Moitshepi Firm, said they received a letter from SEZA on or around the 12th November 2020 notifying that their bid has been disqualified at the technical evaluation stage of the tender adjudication process.
In their response, Lonely Mogara who is Chief Executive Office of SEZA said Moralo Designs is not entitled to be heard by the court as the company never participated in the disputed tender hence SEZA knows the bidder as Moralo Design Consortium.
“Moralo Designs had failed to establish any right to be heard by the court. The fact that they had submitted a tender was not guarantee that they would be awarded the tender,” he said. “The reasons for the disqualification of Moralo Design Consortium’s bid were valid and justified because their bid was insufficient as it lacked vital information as required by the terms of reference.”
SEZA Chief said the requirements for the work plan and project programme were clearly stated in the Invitation To Tender (ITT). Moralo Design Consortium was not penalised for non-existent requirements. In disqualifying the bid by Moralo Designs Consortium, Mogara further indicated that SEZA considered that there was a requirement for a programme and work plan.
“The purported “project programme” that was submitted by Moralo Design Consortium failed to depict the activity durations, activity phasing and interrelations, milestones, delivery dates of reports and logical sequence of activities constituent with methodology and showing a clear understanding of the terms of reference,” said Mogara in responding affidavit.
He said the ITT required that there be provision of delivery dates within the programme hence Moralo Designs Consortium failed to consult with SEZA when they felt that such a requirement would be impossible to provide. He continued to say there was an avenue available when the tender was being prepared, but they failed to use it.
“Moralo Designs’ application for interim relief lacks merit and only seeks to delay SEZA from completing the evaluation and award of a tender that will serve the greater good of the nation,” said Mogara.
He went on to say Moralo Designs has no prospects of succeeding in its review application as the possibility of court granting the review are so remote in that the court does not possess the requisite technical knowhow on what constitutes an adequate work plan and what ought to be contained in it.
A bidder disqualified for failure to provide adequate information has no right to be protected by the court. Irreparable harm can only be suffered by one who has shown that there exists a right in so far as having stood the chance of being awarded the tender.
The financial benefit likely to be derived by Moralo Designs- which is highly unlikely- is outweighed by the nature of the project. In the unlikely event that the application for review is successful, they can claim for damages. The availability of such remedy weighs in favour of the interdict being refused. The refusal stands to benefit the nation more than the financial interest that Moralo Designs seeks to protect.
Moralo Designs failed to establish the urgency of their application. They waited for more than a month and half after the disqualification to approach the court on urgency. Meanwhile when delivering the State of the Nation Address (SONA) last year, President Mokgweetsi Masisi revealed that the detailed design and construction of 12 steel grain silos — with an overall storage capacity of 60 000 metric tonnes — is underway at the Pandamatenga SEZ and the P126 million project will be completed by August 2021.