BCL Provisional Liquidator, Nigel Dixon-Warren says that while significant progress has been made in the winding up of BCL which is in final liquidation, a considerable amount of work still needs to be done.
The KPMG Botswana Senior Partner revealed in his report on BCL Liquidation released recently that the winding up of BCL has proven a complex exercise and is likely to take years to be complete. “The winding up of BCL is complex and will take time to complete, likely years,” he said. The Provisional Liquidator says some of the reasons why the exercise will take time to complete is the status of the records which he says are not up-to-date, the existing and potential legal actions against the company as well as the challenge concerning the disposal of the assets of the company.
The key assets of the company as indicated in the report include the mining s which include the mineral resources, process operations (smelter and concentrator), hospital, residential houses and other properties and equipment which include fabrication workshop and the laboratory. Dixon-Warren states in the report that the BCL also has shareholding in a number of subsidiary Joint Venture companies whose shareholding has been incorrectly allocated to BCL Investment.
“The shareholding needs to be corrected and the financial position revised for both BCL and BCL Investment,” he said. The report further indicates that the majority of these Joint Venture companies were in possession of the prospecting licences which the Minister of Mineral Resources, Green Technology and Energy Security, Advocate Sadique Kebonang has since suspended in accordance with the Mines Act.
Dixon-Warren says in the report that further investigation is required and it is accordingly recommended. He points out that it is still not fully understood what the assets of the company are and how best they can be disposed. He explains that it has not yet been determined what the expected recovery on debtors is and therefore additional work needs to be done to be able to address these outstanding issues.
He says because the records contains inconsistent and unreliable data, considerable effort is required to reconcile the financial position of the BCL Group and to understand the assets and the potential recoverability. Because of the concerns regarding the integrity of the data already reviewed, there is need to source primary data to be reviewed so that informed decisions can be made based on factual information. All these hurdles further compounds the already complex winding up process of the company notwithstanding the complexity of the operations themselves.
“Poor quality of data also impacts the disposal options as considerable work needs to be done to first ascertain what BCL owns,” states the Provisional Liquidator. The report records that disposing of the assets piecemeal has been identified as a possible solution to the benefit of the creditors which the Provisional Liquidator says he is serving their interests. In overall, Dixon-Warren notes that further investigation is required on the reasons for failure of the company and to find out whether there is any potential liability by the directors of the company or other parties. He says consideration should be given to examining whether a formal inquiry into the BCL failure will be needed.
The Provisional Liquidator has highlighted incompetent management, poor governance and financial mismanagement as reasons for failure of BCL among other reasons. He says that the copper and nickel mining giant had been mismanaged for a significant period of time prior to liquidation. He points out that management and board governance was not only poor but largely absent. Without the continued support from the shareholder, BCL would or should have been wound up some time ago.
The board appears to have had neither the capacity nor the commercial expertise to provide appropriate governance and guidance to the management team, Dixon-Warren has said. He says the assessment of the management team by Min Corp in 2014 and 2015 revealed that management was inexperienced within the copper and nickel sector and either unable or unwilling to execute against plan. Dixon-Warren says he confirms this to be true as it is evidenced by sizeable deviations between actual results and approved plans by management.
Four of the main areas identified by Dixon-Warren and his team where management failed to take adequate steps include Labour structure where he described BCL was top-heavy and overstaffed, Budgeting and planning where he posits that there was lack of both proper budgeting and planning which resulted in realistic and achievable targets not being set. He also identifies Oversight, Competence and Accountability as another area where management failed. Supply chain is another critical area which the Provisional Liquidator says it was poorly managed.
“Poor and inadequate management of supply chain has also been identified as an area that likely contributed to the failure of BCL and warrants further investigation. It has already been determined that there were instances of noncompliance with supply chain policies, processes and procedures,” he said.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.