Gaborone High Court Judge Omphemetse Motumise has dismissed with costs Chief Executive Officer of Capital Management Botswana (CMB) Rapula Okaile and further slapped him with another charge of contempt of court on Friday.
Okaile and his wife Neo had approached the court on urgent basis, seeking an order for the release of their eight motor vehicles impounded by the Directorate on Corruption and Economic Crime (DCEC) last month. The applicants’ contention was that their vehicles have been seized without the due process of law such as a warrant or lawful authorization.
Delivering the ruling, Motumise stated that, “I find that the applicants have failed to meet the requirements of urgency. Furthermore, although the application was lodged two days after the vehicles were seized, the applicants have failed to prove that they will not be granted an adequate alternative remedy in due course. They have also failed to establish that the balance of convenience favours them.”
The judge stated that where the impounded vehicles were wrongly seized by the state, the owners thereof have a suite of remedies at their disposal, including among others, restitution; general damages, special damages or the applicants could during the course of investigates simply prove that the vehicles were not proceeds of crime, in which event, they will be released without the need for litigation. “But the applicants do not say why all these remedies will not be available to them in due course or why they are not suitable remedies.”
He said the purpose for which the impounded vehicles have been seized was to conduct investigations: an assessment of the balance of convenience requires a balancing exercise between the rights and interests of law enforcement agencies to investigate and prosecute crime and the right of individuals to enjoy the ownership and possession of their property.
“If the vehicles are released before the conclusion of investigations, this could constitute a severe, if not a fatal blow to the investigations. The questions whether the vehicles were acquired through proceeds of crime would not thereafter be properly or effectively investigated. The respondents will have no guarantee that the vehicles will remain available for investigative purposes, and on the other hand the applicants will have recourse to damages,” ruled the judge, adding that the case favours the
“To express my revulsion and opprobrium at the applicants’ disregard of the order of this court and especially Rapula, I will order punitive costs against them. But this is not enough to send a strong message to the applicants that they need to obey the law and court orders.” It was then that the judge dealt with the issue concerning the motor vehicle registered under CMB. The DCEC had submitted that none of the applicants has the authority to claim it since CMB is presently under statutory management pending a judgement due next week. The court had in the previous mention in a matter concerning the appointment of Mr Peter Collins as statutory manager, ruled that Collins’s appointment shall remain effective pending the finalization of the matter.
In law, in view of the said order, the statutory manager is, the only person entitled to institute proceedings on behalf of CMB and not any of the applicants. The applicants however, sought to deflect the point by suggesting that statutory management is not the same as judicial management. Their contention was that the statutory manager deals with the day to day operations of the company while its directors can deal with other matters such as litigation.
Judge Motumise however ruled that, “In the face of the order of this court and the provision, the applicant’s position is disingenuous and I reject it. The applicants have, by openly purporting to act for, or on behalf of CMB, notwithstanding their knowledge of the order of this court, committed an act of contempt of court. Those actions deserve severe and effective censure from this court.” “I express my displeasure at the applicant’s contemptuous conduct and I find them liable, especially Rapula to be cited for contempt of court.”
The DCEC had on their arguments, urged the court to dismiss the application on the basis that leaving the vehicles at the disposal of the applicants has the inherit danger of the vehicles being disposed of, thus defeating the effectiveness of any criminal or civil forfeiture order that the courts may order later.
An officer of the DCEC, Goitseone Esely stated on a replying affidavit that the DCEC was presently investigating the Botswana Opportunity Partnership (BOP) into which a commitment of P500m was made by Botswana Public Officers Pension Fund (BPOPF) on the inception of the contract between it and CMB in 2014.
CMB is the general manager of BOP where BPOPF is a limited partner and has contributed the sum of P477m to be invested and managed by CMB. There is a reasonable suspicion that some of the funds were diverted to CMB accounts and in turn ended up financing the vehicles owned by WARENTEBO Investment. She stated that the impounded vehicles might have been acquired through proceeds of crime, and that they were seized in the course of lawful investigations under the DCEC Act.
The lawyers representing former President Lt Gen Ian Khama, Ramalepa Attorneys have come forth dismissing a response letter penned down by Botswana Democratic Party (BDP) activist MacDonald Peloetletse after he was slapped with a P1.5 million lawsuit for defamation of their client.
Tebogo Tladi, an attorney at Ramalepa, said last week Thursday Peloetletse took to social media to publish a substantively false, wrongful and unlawful statement about Khama. MacDonald Peloetletse’s commentary which was posted on Gabz FM News page reads, “I am a former soldier. Everything former President SKI Khama said here is a LIE. In fact, soldiers suffered more under Khama than under his predecessors.
He actually stole money that the UN had paid to the soldiers who went for the operations and paid them less than a quarter of what was actually due to them. “Unhappy soldiers took the BDF to court and won, the BDF is still struggling to pay the debts! Khama can fool some people, but not all the people and not all the time.
“In fact many soldiers, serving, retired and those that resigned and were in the operations during Khama’s time get even more annoyed to such disrespectful statements by Ian Khama.” Khama’s lawyer says the impugned statement was published with the intention to injure his client (Khama) in his personality rights, good name and dignity, further indicating that the statement has damaged his good reputation.
“We have therefore been instructed by Client to demand, as we hereby do, that you publish on the same forum a retraction and a full and unconditional apology to Client within three days of receipt of this letter- and that you deliver such apology in a formal letter to the Office of the Former President, Dr Khama. In the event that you have not compiled with this demand by close of business on Monday 10th May 2021, our Client will assume that you have refused to comply with this demand.”
To top it all off, Khama demands that Peloetletse pay him P1.5 million in damages for defamation. “Furthermore, we hold instructions to demand as we hereby do, that you pay our Client damages for defamation in the sum of P1, 500,000.00 within seven days of receipt of this letter.” In the event that Peloetletse fails to pay the amount of damages demanded by Khama, Tladi says they will institute legal proceedings for the recovery of the aforesaid damages.
In his response letter addressed to Ramalepa Attorneys, Peloetletse said that he requests enlightenment and clarification that he be provided with proof that the allegations and comments which they attribute to him were indeed authored by him and that the platform which the comments were placed was not hacked.
“Please also advise if whether your clients has been endowed with a “special particular privilege status” that restricts the citizens of this country from commenting or responding to public statements made by your client in the course of political discourse especially when made on public forum and relate to matters of general public concern. (I trust that your brilliant legal mind is well informed with respect to the jurisprudence in such matters)”.
Peloetletse also said he would like to share with the attorneys a video which was posted on a public forum. “Please listen carefully to the conversations and discussion herein and advice if possibly such discussions form a reasonable basis for a justifiably rebuttal by any Motswana Citizen to the public pronouncements and defamatory statements made by your client about our government (bearing in mind of course a citizens constitutional right to freedom of speech and freedom of expression).’’
Consulted for further comment on the matter on Thursday after receiving Peloetletse’s response, Khama’s attorney Tebogo Tladi said the letter doesn’t hold any water. “The only way out for him is to prove the truth of the allegations on his comment or deny publication. He does not answer substantively to the defamation and does not respond to the demand of an apology or payment of damages.
So his letter really contains largely matters irrelevant to the substance of the letter of demand. His response in fact presents no legally cognizable defence at all- it would appear he responded without the benefit of legal advice, which would not be prudent for such an important case. So we will proceed to issue summons and wait to see what defences he will plead in court.’’
Botswana and Zambia this week celebrated the opening of a multi-million Dollar infrastructural project, the Kazungula Bridge, projected to contribute around P100 million annually for Botswana. This project comes after the signing of the 2012 Agreement between the two countries to construct a bridge that would ease movement of goods.
President Mokgweetsi Masisi said the Kazungula Bridge will open avenues for improved trade, job creation and economic diversification in both countries. Further, the Bridge will significantly accelerate Southern African Development Committee (SADC) regional integration agenda which Botswana and Zambia are vigorously pursuing.
“By growing our strategic partnerships through this project, we have improved the development and competitiveness of our economies to attract more private sector investment, thereby, supporting our efforts to create employment, especially for the burgeoning youth,” Masisi said at the opening ceremony in Kazungula on Monday.
The Kazungula Bridge comprises a road and rail bridge over the Zambezi River, directly linking Botswana and Zambia. It has One-Stop-Border Post facilities on both sides, which will enhance the operational efficiency at entry points, replicated on both sides of the boarder.
The Bridge was originally conceived as a critical link in the African North-South Corridor under the African Union’s New Partnership (NEPAD) for Africa’s Development programme. It has since evolved to encompass a multimodal transport plan under the Programme for Infrastructure Development in Africa (PIDA).
The PIDA programme, which encompasses liberalisation of air travel, rail links, road, water and all other modes of transport has only one objective: to unite the States of Africa in order to foster trade on the continent
“Connectivity of our nations will in no small measure, promote people to people interactions and uplifts their standard of living. I am pleased to state that the completion of this project is a clear demonstration of our commitment to PIDA.”
The 260 million US Dollar Kazungula Bridge was commissioned by Zambian President, Edgar Lungu and President Masisi. President Lungu said the bridge was a monumental effort linking Zambia internally and externally to ease the movement of goods and services.
“I have held talks with my counterpart in Botswana that this project must run daily up to 22 hours as soon as possible and you the technocrats must not play ping-pong with us after making these public procurements,” Lungu said at the official opening in Kazungula.
For his part, DRC President Felix Tshisekedi said the project was tandem with the Africa Union (AU) goals and priority areas for Agenda 2063 which called for a prosperous Africa, based on inclusive growth and sustainable development.
The new Kazungula Bridge replaces the Kazungula Ferry, a pontoon ferry across the 400-metre-wide Zambezi River between Botswana and Zambia. It was one of the largest ferries in South-Central Africa, having a capacity of 70 tonnes.
In 2003 the ferry was the site of a disaster when a severely overloaded Zambian truck capsized one of the pontoons and 18 people drowned. The accident was blamed on the lack of weighbridges in Zambia to check the weight of trucks.
In August 2007, the governments of Zambia and Botswana announced a deal to construct a bridge at the site to replace the ferry. The existence of a short boundary of about 150 meters between Zambia and Botswana was apparently agreed to during various meetings involving Heads of State and officials from all four States in the 2006-2010 period.
The route for this new bridge crosses the boundary without entering Zimbabwe and Namibia. Zimbabwe already has a bridge into Zambia at Victoria Falls, 70KM from Kazungula. Namibia on the other hand has a bridge into Zambia at Katima Mulilo about 150KM upriver.
Member of Parliament for Jwaneng/Mabutsane, Mephato Reatile has noticed intention to bring to parliament an amendment on Adoption of Children’s Act during the winter session, expected to start its sittings in July 2021.
The purpose of the Bill to amend the Adoption of Children’s Act (cap, 28-01) by removing those elements in the Act that are against the letter and spirit of the United Nations Convention on the Rights of a Child (UN-CRC).
The United Nations Convention on the Rights of Child, article 126, states; the adoptee and his or her legitimate descendants should acquire the same inheritance rights within the adopter’s family as a legitimate child but without the rights to inherit a reserved portion of the estate of the adopter’s descendants.
This is however differs from Botswana Children’s Adoption Act as section 6 (1) of the Adoption Act, 1952 (cap 28:01) states: ‘However, the adopted child does not by virtue of the adoption, become entitled to any property devolving on any child of his or her adoptive parents by virtue of any instrument executed prior to the order of adoption whether the instrument takes effect inter vivos or mortis causa, unless the instrument clearly conveys the intention that the property shall devolve upon the adopted child.’
Reatile said that an adopted child should have the right to inheritance like any other child because the adoptive parents would have made an oath in the court of law that they will be their rightful parents, therefore all the responsibilities of the child lies upon them.
He further highlighted the fact that no child asks to be adopted, it is therefore upon the adoptive parents to fully ensure that the child is well taken care off and that every decision taken should always be in their best interest.
“In most cases, adopted children are often enslaved by being made to work hard in their adoptive parents’ property and get nothing in return as they do not include them as their rightful heirs,” Reatile told WeekendPost.
The Jwaneng/Mabutsane lawmaker stated that adopted children may also have a part in investing wealth for their adoptive parents and in cases where these parents die, the family of the adoptive parents’ may deny them everything including what they contributed.
This, according to him is clearly violating the rights of these children and that is why he wants the law to look at it from his perspective and protect them regarding this matter. Moreover, the amendment also seeks to delete paragraph; (a) so that it should not be permissible in law for a person to marry a child they have adopted, and paragraph (b) that it does not become permissible for a person to have any sexual relations with a person they have adopted.
The Act in section 3 of the Succession (Rights of the Surviving and Inheritance Family Provisions) Act 1970, act [Cap 31:02], and section 7, Customary Law Act 1969[Cap16:01] Laws of Botswana does not prohibit or permit marriage between the adopted child and other persons including adoptive parents and their relatives, which would have been prohibited or permitted if the adoption had not taken place.
It further says that where the adoptive parents are not related to the adopted child, then marriage between them is not prohibited because there is no blood relation between them. “I am utterly disappointed with this provision as this action has the potential to promote sexual abuse of children by those that are meant to protect them and that adoption relations must always to the fullest extent possible in law, ensure and enforce the truest parent-child relationship,” Reatile said.
He also added that the country is still fighting to stop violation of human rights cases and that if this law is not amended, then all efforts would be in vain. Nevertheless, article 124 of the (UN-CRC) states that it prohibits marriage between the adopter and their descendants, the adoptee and their adopter’s spouse; and, conversely, between the adopter and the adoptee’s spouse, the adoptive children of the same individual as well as the adoptee and the adopter’s children.
He said that Botswana Children’s Adoption Act should be in line with the laws stated in the UN –CRC in order to match their standard for the benefit of these children. Reatile said that the proposed amendments seek to address the identified gaps to ensure that to the greatest extent, the law on adoption speaks the same language as espoused by the UN-CRC and the Children’s Act to address the principle of ‘best interest of the child’.