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BPOPF takes legal in CMB’s P500 million breach

By close of business on Friday, Capital Management Botswana (CMB) was expected to have complied with an order compelling it to return Fund money in its possession back to the Botswana Public Officers’ Pension Fund (BPOPF) accounts after it was found to be in breach of the Partnership Agreement as a general partner.

BPOPF lawyers who were working on administering their order against Capital Management Botswana (CMB) following termination of a contract on 30 October, 2017, had pushed from the CMB end and now BPOPF has no choice but to take legal action, Weekend Post has learnt.

Sources close to the case indicated that CMB has not complied with the order directing them to transfer all the funds back to the BPOPF’s account five weeks later. In the letter of the minutes leading to the termination of the contract which survived only two years, BPOPF labeled CMB’s persistent breach of the obligation in managing and handling of the funds as negligent and an act of misconduct.

“We note that a number of these breaches also amount to ‘misconduct’ on the part of the Fund Manager. The sheer extent of the incidences of breach, the persistence of the same breach, the failure to inform BPOPF of any breaches and failure to take the steps to remedy  breaches not only constitutes a failure to meet the standard of a prudent individual but also amounts to grossly negligent conduct.”

According to the minutes, CMB just allocated money to companies anytime of the day and not following the stipulated procedures, like proposed investments and securities to be acquired. BPOPF entered into agreement (Advisory and Management Services Agreement 9AMSA)) with CMB as the fund manager of P500 million on 3rd November, 2014. BPOPF at the time committed P500 million. And at the time the contract was terminated, over P477M was drawn down, leaving about P22M of undrawn capital commitments by BPOPF. The Fund was established as a private equity fund

WHO BENEFITED FROM CMB MISCONDUCT?

Principal in the conflict between BPOPF and CMB is breach of the Investment Policy. One of the companies that benefited from the breach is Wilderness Holdings, the tourism company is also in the bad books as far as the BPOPF records are concerned. “The investment in Wilderness Holdings is not an investment in company implementing private equity projects. It is an investment in public equities, which constitutes a breach of the investment policy,” states the minutes. The Investment Policy in the context of the BPOPF refers to investment in portfolio companies implementing private equity projects. “No argument has been made that Wilderness Holdings implements private equity projects and the interposing of a special purpose vehicle does not resolve the issue.”  

And as if that was not enough, the amount invested in Wilderness Holdings constituted 30% of Total commitment. According to a legal opinion rendered to BPOPF this is in breach of clause 12 of the Investment Policy which limits any investment in a single portfolio company to 25% of the Total Commitment. Therefore, Wilderness was awarded an amount beyond the limit. BPOPF stressed that this breach is not capable of being remedied. It was also identified that a company by the name Kawena also breached the prudential limit for the investment in any portfolio company. Furthermore it emerged that the Kawena breach is capable of being remedied.

A PLETHORA OF BREACHES

There are several other breaches to the agreement between BPOPF and CMB, with attorneys of the former pointing out that Drawdown Notices did not comply with the provisions of the Partnership Agreement in that they do not contain information required in relation to the description of the business, the amounts being allocated to each investment, and that certain information is missing.

“We understand that the Fund holds an investment in Makuba Airlines for which there is no corresponding Drawdown Notice. It appears the funds that were drawn down for some other purpose were utilized to make this investment. This is a serious and material breach of the Partnership Agreement which cannot be remedied,” the attorneys observed.

The legal assessment by BPOPF also noticed breach of Key Man Provisions and breach of Reporting Obligations. “It would appear that the General Partner has breached its obligation to supply BPOPF with quarterly reports throughout the life of the Fund.” The assessment also identified signs of conflict of interest in some of the dealing such as the one that involves a company called AGILE Investments and one Mr Rowley.

It also established that there were excessive Fund expenses, for example on 3rd March 2016, the General Partner drew down an amount of P12 500, 000 representing 2.5% of the Total Commitment. “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.” The legal team is clear that the available remedy is for the removal of the General Partner and BPOPF has been advised to seek damages as compensation for financial loss suffered as a result of the breach.

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State forged Kgosi’s arrest warrant

22nd July 2021
FORMER DIS BOSS: ISAAC KGOSI

In a classic and shocking case of disgrace and dishonour to this country, the law enforcement agencies are currently struggling to cover up a damaging and humiliating scandal of having conspired to forge the signature of a Palapye Chief Magistrate, Rebecca Motsamai in an unlawful acquisition of the much-publicised 2019 warrant of arrest against Isaac Kgosi, the former director of the Directorate of Intelligence Services (DIS).

The cloak-and-dagger arrest was led by the DIS director, Brigadier Peter Magosi supported by the Botswana Police, Botswana Defence Force (BDF), with the Botswana Unified Revenue Services (BURS) which accused Kgosi of tax evasion, in the backseat.

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UDC parties discuss by-elections

22nd July 2021
UDC

Umbrella for Democratic Change (UDC) constituent members are struggling to reach an agreement over the allocation of wards for the imminent ward by-elections across the country.

Despite a Memorandum of Understanding (MoU) between Umbrella for Democratic Change (UDC), Botswana Patriotic Front (BPF) and Alliance for Progressives (AP) are said to be active, but the nitty-gritties are far from being settled.

The eight bye-elections will be a precursor of a somewhat delayed finalisation of the brittle MoU. The three parties want to draw a plan on how and who will contest in each of the available wards.

This publication has gathered that the negotiations will not be a run off the mill because there is already an impasse between the Botswana Congress Party (BCP) which is a UDC constituent and AP (currently negotiating to join umbrella).

The by-elections joint committee met last week at Cresta President Hotel in a bid to finalise allocation but nothing tangible came out of the gathering, sources say.

The cause of the stalemate according to those close to events, is the Metsimotlhabe Ward which the two parties have set their eyes on.

In 2019, he ward was won by Botswana Democratic Party’s (BDP) Andrew Sebobi who unfortunately died in a tragic accident in February last year.

Sebobi had convincingly won by 1 109 votes in the last elections; and was trailed by Sephuthi Thelo of the UDC trailed him with 631 votes; while Alliance for Progressives’ Innocent Moamogwe got 371 votes.

Thelo is a BCP candidate and as per UDC norm, incumbency prevails meaning that the BCP will contest since they were runners up. On the other hand, AP has also raised its hand for the same.

“AP asked for it on the basis that they have a good candidate but BCP did not agree to that request also arguing they have a better contestant,” one UDC member confided to this publication.

Notwithstanding Metsimotlhabe Ward squabble, it is said the by-election talks are almost a done deal, with Botswana National Front (BNF) tipped to take Boseja South ward in Mochudi East constituency. Botswana Patriotic Front (BPF) will be awarded Tamasane Ward in Lerala/Maunatlala constituency, sources say.

“But the agreement has to be closed by National Executive Committee (NEC),” emphasized the informant.

The NEC is said to have been cautioned not to back the wrong horse but rather rate with reason and facts.

UDC President, Duma Boko has told this publication that, “allocation is complete with two wards already awarded but with only one yet to be finalized,” he could not dwell into much details as to which party got what and the reasons for the delay in finalisation.

Chairperson of the by-elections committee, Dr. Phenyo Butale responded to this publication regarding the matter: “As AP we contested and as you may be aware we signed the MoU with UDC and BPF to collaborate on bye-elections. The opposition candidate for all bye-elections will be agreed by these parties and that process is still ongoing,” he said when asked if AP is interested on the ward and how far with the talks on bye-elections.

Butale, a former Gaborone Central Member of Parliament, who is also AP Secretary General continued to say, “As the chairperson of the bye-elections committee we are still seized with that matter. We should also do some consultations with the local structures. Once the process is complete we will issue a notice for now we cannot talk about the other two while the other is still pending the other one”.

Butale further clarified: “There is no such thing as AP and BCP not in agreement. It is an issue of signatories discussing and determining the opposition candidates across the three wards.”

Apart from the three wards, there are five more council wards that UDC is yet to allocate to cooperating partners.

FROM PALAPYE MEET: BPP CAUTION NEC MEMBERS  

With the UDC cheerful from last weekend’s meeting in Palapye, the meeting however was very tense on the side of both BCP and BNF, with only BPP flexing its muscle and even lashing out.

BCP going into the meeting, had promised to ask difficult questions to the UDC NEC.

BCP VP and also acting Secretary General, Dr. Kesitegile Gobotswang, presented their qualms which were addressed by UDC Chairperson Motlatsi Molapisi, informants say.

It is said Molapisi is fed up and concerned by some UDC members especially those in the NEC who ‘wash party’s dirty linen in public’.

Insiders say the veteran politician cautioned the NEC members that they “will not expel any party but individuals who tarnish the image of the UDC.”

It is not the first time BPP play a paternalistic role as it once expressed its discontent with BCP in 2020, saying it should never wash UDC linen in public.

At first it is said, BPP, the oldest political formation in Botswana, claims disappointment on BCP stance that UDC should be democratised especially by sharing their stand with the media. Again, BPP was not happy with BCP leader Dumelang Saleshando’s decision to air his personal views on social media regarding the merger of UDC party.

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DIS infiltrates Police fingerprint system

22nd July 2021
Makgope

Botswana Police Service (BPS) Commissioner, Keabetswe Makgophe, has of late been dousing raging fires from various quarters of society following the infiltration of the police fingerprint system by the Directorate on Intelligence and Security (DIS), WeekendPost has learnt.

Fresh information gleaned from a number of impeccable sources, points to a pitiable working relationship between the two state organs. Cause of concern is the DIS continuous big brother role to an extent that it is now interfering with other institutions’ established mandates.

BPS which works closely with the DIS has been left exasperated by the works of the institution formed in 2008. It is said, the DIS through its Information Technology (IT) experts in collusion with some at BPS forensics department managed to infiltrate the Fingerprint system.

The infiltration, according to those in the know, was for the DIS to “teach a lesson” to some who are on their radar. It is said the DIS is playing and fighting dirty to win the fights they have lost before.

By managing to hack the police finger print system, a number of renowned businessmen and other politically exposed persons found their fingers in the system. What surprised the victims is the fact that they have never been charged of any wrongdoing by the police and they were left reeling in shock to learn that their fingers are on the data-base of criminals.

In fact, some of those who their fingerprints were falsely included in the records of those on the wrong side of law learnt later when other errands demanded their fingerprints.

“We learnt later when we had to submit and buy some documents and we were very shocked,” one politician who is also a businessman confided to this publication this week.

“We then learn that there are some fabricated criminality recorded for us, as to when did we commit those remained secret to the police, but then we had to engage our lawyers on the matter and that is when we were cleared,” said the politician-cum- tenderpreneur.

The lawyers have confirmed engaging the police and that the matters were settled in a gentlemen’s agreement and concluded.

All these happened behind the scenes with the police top brass oblivious only to be confronted by the irked lot, police sources also add. The victimized group who most of them have been fighting lengthy battles with the DIS read malice and did not blink when it was revealed that these were done by the DIS.

“And it was clear that they (DIS) are the ones in this dirty war which we don’t understand. Remember when we sue, it will be the Police at the courts not the DIS and that is why we agreed to a ceasefire more so they also requested that be kept under carpet,” said the victim.

Nonetheless, the Police through its spokesperson Assistant Commissioner, Dipheko Motube, briefly said: “we do not have any system that has been hacked.” On the other hand DIS mouthpiece Edward Robert was not in office this week to comment on the matter.

Reports however say DIS boss, Peter Magosi, who most of the victims accuse of the job, is said to have met his police counterpart Makgophe to put the matter to bed.

COVID-19 RAVAGES POLICE

As frontline workers, Police have not escaped the wrath of Covid-19. Already the numbers of those infected has reached the highest of high and they suggest that they be priorities on vaccine rollout.

“Our job is complicated, firstly we arrest including those who are non-compliant to Covid protocols and we go to accidents and many more. These put us at risk and it seems our superiors are not bothered,” said one police officer this week.

The cops further complain about that working spaces are small, as such expose them to contact the virus.

“Some tests positive and go for quarantine while the rest of the unit will be left without even test carried out. If at all the bosses are serious all the police officers should every now and then be subjected to testing or else we will be no more because of the virus,” added another officer based in Gaborone.

The government has since placed teachers on the priority list for the vaccines, it remains to be seen whether the police, who also man road blocks, will be considered.

“But our bosses should convince the country leadership about this, if not then we are doomed,” concluded a more senior officer.

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