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Public servants may lose P500 million

The case between Botswana Public Officers’ Pension Fund (BPOPF) and Capital Management Botswana (CMB) has now taken a legal turn, with BPOPF dragging CMB before the court of law. The case was before the Gaborone High Court on Friday and it is likely to be a marathon case.

At the centre of the case are attempts by the BPOPF to recover P477 million from CMB in the form of assets and cash. It is arguing that the investments made are not in tandem with the agreed investment policy. The most recognized local face behind CMB is Rapula Okaile and he has partnered with South African businessmen. CMB is determined to fight off suggestions by the BPOPF, if the case does not go in the latter’s favour, public servants will be the biggest losers.

But CMB has forced BPOPF to start arguing preliminary matters first. In the active case, the applicant BPOPF is seeking a verdict that they be determined the rightful party to terminate contract with CMB and take over the assets. And on the other hand CMB contends that they are the right party to terminate the contract, not the other way round. This followed an exchange of letters of termination of contract between the two parties a month ago.

BPOPF had three weeks ago written to CMB terminating their contract for persistent breach of the obligation in managing and handling of the funds which they labeled as negligent and an act of misconduct by CMB. They also summoned CMB to return all documentation and assets. In response to this, CMB wrote back to BPOPF a week later that they were actually the ones terminating the contract. Their reason was that BPOPF did not honor the Drawdown notice of Lobatse Clay Works.  CMB then deposited P50 million into BPOPF account citing it was net cash. And BPOPF argument was that the money was short of P420 million.

Should the court grant BPOPF the verdict, BPOPF will then get hold of the records from CMB; get the assets back which are at Bona Life, Wilderness Holdings and Cell City;  do the audit and get to see the valuation of the record as they are of the view that CMB has misused the funds.  BPOPF is also questioning the assets which CMB says they have invested with three other companies namely Kawena, Makuba Airlines and Ajine University. BPOPF says it is not even sure of the existence of the said companies. Kawena was supposed to be a chain of stores competing with Choppies stores according to the records. In the case CMB wins the case, BPOPF will then get nothing from CMB.

The background of the case is that BPOPF entered into an agreement (Advisory and Management Services Agreement 9AMSA) with CMB as the fund of P500 million on 3rd November, 2014. BPOPF at the time committed P500 million. Two years later, BPOPF questioned the way CMB was handling the funds, accusing it of breach of the investment policy. It was then that BPOPF terminated the contract on 30 October, 201, leading to the case before court today. BPOPF also wants 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 General Partner and Fund Manager.

MOLEFHE HAD SEEN THE SMOKING GUN

This publication learned that when Boitumelo Molefhe joined BPOPF in July 2015 she expressed concern that there were so many loopholes in some of the contracts BPOPF had entered into. She is said to have written to the Board in August 2016 making members aware of the anomalies and the need to take action but she was not successful. Molefhe is said to have asked for a proper valuation of CMB.

Weekend Post is informed that at the time, CMB had only invested in Bona Life. Unfortunately indications are that Molefhe was in her own world as many board members discouraged her from going ahead with the valuation. Board members were convinced that everything looked well and urged Molefhe to let sleeping dogs lie.  Sources point out that some went to the extent of scaring Molefhe by telling her that she was putting her position at risk.

“She demanded that her advice be put in writing as a record that she once demanded that this be done but the board was not willing to do so,” said a source close to the developments.  At some point Molefhe was accused of being trigger happy because every season she was firing one of the Fund managers.  Molefhe is said to have insisted that the board must be vigilant because it was dealing with public money which has to be accounted for. “It is only until recently that she decided to take the bull by its horns and fight this issue of CMB,” said the source. 

“People should understand that these are public funds, it is not somebody’s kitchen where they can do as it pleases them,” said a concerned citizen close to the BPOPF on goings. There was an initial back and forth on the subject of whether to terminate CMB or not. But common sense prevailed and the termination was agreed. On the issue of taking the matter to court the Board unanimously agreed.  A total of P477m was invested in all the six disputed companies and BPOPF wants it returned. BPOPF is represented by Werkmans Attorneys through the local law firm Minchin and Kelly.

A STAND OUT BREACH

BPOPF is taking a strong exception of the breach of the Provisions Relating to Fund Expenses. It notes that Fund Expenses should be reasonably incurred and duly evidenced and should expressly exclude any placement agent fees. It is said that on 3 March 2016, the General Partner drew down an amount of P12,500,000 representing 2.5% of the Total Commitment which BPOPF understood were in respect of Fund Expenses and Organisational Fees. The Drawdown Notice breached the provisions of the Partnership Agreement by not setting out the allocation to each item.

Fund Expenses must be actually incurred by the General Partner before they are reimbursed.  No evidence was provided with the drawdown that such fees were indeed incurred. BPOPF notes that there are caps of 0.25% on each of Fund Expenses and Organisational Fees. It Its concern is that this covers the entire term of the Fund. The capped amount was therefore P2,500,000 over the life of the Fund. Beyond that amount, any expenses of the Fund are to be borne by CMB. The amount drawn down exceeds the capped fees by P10,000,000.

The drawdown was also supposed to cover Management Fees. These are not separately enumerated in the notice but it is noted that the amount of P10,000,000 represents 2% of the Total Commitment whereas the Fund Manager was entitled to 1.5% as a fee. The difference cannot be explained by the reference to cash reserves .

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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy. 

The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.

However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world.  The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.

Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.

“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.

The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)

Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.

“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.

“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.

“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.

“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.

For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.

In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.

According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.

In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled.
Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.

Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects.  During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies.  Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination.  The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.

The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.

Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.

He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful.  Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.

But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB.  FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.

Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.

Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB.  “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.

The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).

FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders.  Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.

In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.

But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings.  “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.

FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries).  The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?

“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.

“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.

He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”

“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.

Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.

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