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New BERA given vast powers over licence holders

The Botswana Energy Regulatory Authority (BERA) has been given more powers in line with the new law to crack the whip on license defaulters.

The parastatal was formed two months ago subsequent to the passing of the Botswana Energy Regulatory Act of 2016 by parliament. BERA is responsible for the economic regulation of the energy sector being; electricity, petroleum products, coal, natural gas, solar energy and other forms of renewable energies. The parastatal is tasked with issuance of licences to the five (5) multinational oil companies (Botswana Oil Ltd., Vivo Energy, Puma Energy, Engen Oil Marketing, Chevron Botswana and Total Oil Botswana) including a number of citizen based companies (Excess Petroleum, Stol, Afritech, Tswana Petroleum).

This extends also to a number of international and local Gas Supply and Distribution Companies (Total, Afrox Botswana, Easigas Botswana, Pula Energy, Airliquide, and Simsagas). BERA Chief Executive Officer (CEO) Rose Seretse told the press this week in the inaugural media pitso since the instigation of the organisation that “the parastatal may amend, suspend or revoke a licence and impose such fines as it may consider appropriate at the end of the investigations – if the Authority is satisfied that there is a contravention of the Act.”

She emphasized that in terms of Section 53 (1) of the Act, the Authority is conferred with powers to initiate or receive and investigate any complaint from any person against a licensee.  She said the investigation should be based on the existence of reasonable grounds that a contravention of any of the provisions of the Act has occurred or that the conditions of a licence are not adhered to.
    

According to the ex-Director of Directorate of Corruption and Economic Crime (DCEC) the Authority has the power to enter and search the premises of any licensee it intends to investigate (give a licensee four (4) days’ notice of the intended search and reasons for searching the premises). She stated that however if the Authority decides to investigate it shall inform the licensee or affected person in writing of its intention to investigate. “Before the search, the Authority shall obtain a search warrant from the Magistrate Court. Notwithstanding, the Authority may enter and search any premises, other than a private dwelling, without a warrant (followed by an ex post notice),” Seretse pointed out to the pack of journalists at the briefing.

The BERA CEO warned that the authority has power to require information from any person that it considers necessary to enable it to carry out its functions under the Act, and it is an offence to unreasonably refuse to furnish the Authority with information when required to do so under Section 66 of the Act. According to Seretse, it is important to note that an application for a licence may if the authority considers necessary be done through a tendering method determined by the authority.

“Additionally, it is worth noting that licences will be issued at a fee which includes application fees and annual licence fees among others.  However, these fees should be reasonable, justifiable and appropriate for the type of activity. The annual licence fees in aggregate should not exceed one and half percent of the combined gross turnover of the licence or regulated entity,” she said.  

BERA is also mandated to ensure that there is competition in the energy sector and that there is energy security in Botswana. Nonetheless, Seretse highlighted that in terms of Section 62, the Authority shall refer all issues relating to competition to the Competition Authority.
In terms of their responsibilities on the tariffs, Seretse said the authority may review a tariff where it considers it necessary to do so in the interest of customers, consumers and other users and where the tariff is due for periodic review as determined by the authority from time to time.

“The Authority shall, from time to time and by notice in the gazette publish the tariff review methodology and considerations that the Authority apply when reviewing a tariff. The Authority shall, when reviewing tariffs, take into account any direct subsidies by government to support energy or cross subsidies between different consumer classes.” Already it was reported that BERA is inundated with reports on mishandling and smuggling of fuel out of the country. It is said that consumers and other informal fuel resellers purchase fuel from various fuel filling points with containers not recommended for safe handling and transportation of fuel.

“Containers used include, 20 litres and 25 litres plastic containers, 200/210 litres drums and in certain instances; worn out jerry cans. It has been observed that this practice is particularly rife in the northern part of the country; Francistown, Kasane and the surrounding areas.” It has also been noted that the fuel being smuggled outside the country is for re-sale in the neighbouring countries to the northern part of Botswana, and that BERA will continue to put such unwanted conduct on line. The Ministry of Minerals Resources, Green Technology and Energy Security (MMGE) through the Department of Energy is responsible for the formulation, development and coordination of the National Energy Policy.

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DPP halts JSC, Judge’s back to work plan

25th January 2021
Kebonang

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.

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BDP rejects Saleshando payment proposal

25th January 2021
MP saleshando

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.

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Boko-Khama axis viewed with suspicion

25th January 2021
boko-and-khama

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.

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