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Allocation of G-North vast land raises eyebrows

The enormous land adjacent to Motswedi Community Junior Secondary School (CJSS) and the suburban Tapologo Estates in Gaborone North, which was owned by government, is currently at the center of dispute following its mysterious allocation to a company to build houses and later sell to Batswana.


Weekend Post has established that the controversial wide-ranging land, spanning in approximately more than 10 hectares with 6 open spaces was awarded to Zimmal Reliance Botswana (Pty) Ltd under questionable circumstances. The company is believed to be owned by foreign nationals alleged to be of Indian/Chinese origin. The company is already developing a screen wall along the plot claiming to own it.


Minister of Land Management, Water and Sanitation Services Prince Malele may also have misled parliament through answering a question from area legislator, Gaborone North, Haskins Nkaigwa on the proprietors of the land. The company and government were said to have got into a partnership under the Public, Private, Partnership (PPP) arrangement. Under the agreement, the open spacious land was allotted the company with the intention to construct accommodation encompassing between 400 and 600 housing units.  


The irony of the matter though is how and why Batswana were left out of the equation as they were not allocated the land from the onset so as to build the houses for themselves. The land allocation in Gaborone for beneficiaries who applied in 1989 was done in 2011. In Gaborone alone, around 35 000 people are on the waiting list as the city is overwhelmed with shortage of the land and accommodation. Information has emerged that the controversial land, originally belonged to the state but was later allocated to Zimmal Reliance Botswana in September 2002.


Investigations by this publication into the Directorship of the Company at Registrar of Companies and Intellectual properties Botswana in order to ascertain their ownership and, contact them for a comment, were in vain. However officials at Registrar of Companies said in a conversation with this reporter that the company in question is amongst a batch of companies registered before the advent of computerised network system. Therefore, in the system, the shareholders of the company could not appear and as such, the only option was to go through the loads of files in search for the Directors.


Following many years after the company failed to develop the land in question, the government until this year threatened to re-possess the land through a letter to the company, the move which the Minister verified. This publication has further established that the threat to the company came as a result of the area legislator Nkaigwa who had asked a question on parliament floor in the last sitting of parliament regarding the disputed land.


The question posed on 22 March 2017 by the MP stated: “to ask the Minister of Land Management, Water and Sanitation Services as to who owns plot 56018, 56147, 54409, 56273, 56128, 56086, and 55841 next to Motswedi CJSS, Botlhale Primary School, Tapologo Estates and Ledumang Senior Secondary School.” He further questioned how the open spaces which have been there for over 30 years were allocated; including, whether they were advertised and how many stakeholders participated.


“If he is aware that the open spaces were for plot allocation to Batswana; if so; what changed their initial plan and; who initially fenced the open spaces and with whose authority as it has been fenced for over 30 years,” Gaborone North law maker, where the dubious land deal occurred, asked the minister. In his response at the time, Minister responsible for Land Management, Maele confirmed that the plots questioned were mere open spaces and they are “owned by government.”


“They are all owned by government except plot 54409 Gaborone which is registered under Gaborone City Council (GCC). This plot, unlike others in question is not within the locality stated but it is situated in the Gaborone Central Business District (CBD),” he told parliament then. Maele also stated that plot 54409 Gaborone is the one which has been allocated and it was allocated to GCC by the Minister in 2005.


He further said that plot 54409 Gaborone was not advertised but was allocated through direct allocation to GCC, while adding that the other plots have not been allocated and still belong to government. “The open space that has been allocated to GCC, together with other open spaces elsewhere in the city, is open for development and management in partnership with either the community or the private sector for the benefit of the community.” He added then that “the initial plan to allocate the plots to Batswana has not changed.”


The minister for Land Management also told parliament that the stated open spaces are not fenced but what is fenced is a block of residential plots within which the open spaces are located to protect the area from dumping. However, two months down the line since answering the question on the disputed land, it appears Minister Maele has inexplicably rescinded on his earlier position that the land belongs to government. Speaking to Weekend Post this week Minister Maele stressed that the land belongs to Zimmal Reliance Botswana (Pty) Ltd (and not government as per his earlier position).


“I can speak on authority that the company (Zimmal Reliance Botswana) was allocated the land on 6 September 2002,” he told this publication on Wednesday. Gaborone encompasses the state land, such as the dubious land, which is managed by the Ministry of Land Management, Water and sanitation Services and they allocate the land through Gaborone City Council (GCC) which does spade works like inspections, Environment Impact Assessments (EIS’s).


A reliable source closer to the development has stated that the company did EIA’s in March and April and that there is no way such may have been approved. “So they have started the constructions with the approvals,” he said. According to Maele, upon inquiry, he could not establish whether the tender was a direct allocation to the company engaged or not. He said the journey all started way back in 1999 until the final allocation of the land to the company in 2002. He therefore advised that he will need more time to revisit the files of the contract agreement.


He however clarified that upon allocation of the land by the company under PPP the initial and preceding plan is to develop the land by erecting housing units that would in turn later be sold to Batswana to enable them to incur their costs through profits made out of the sales.


“We talked about a construction of around 400 housing units and this of course still stands.” He continued to state that it is not correct that a state of the art mall will be built on that land as that is not the agreement and the land is not for that purpose. He said so far, the mounting of a screen wall that is currently going on at the site illustrates their commitment to develop the land. Although the land was allocated many years back, Minister was at pains in explaining why the land has not been repossessed from the company after 15 years as a white elephant.


“Yes it is unfortunate that those people did not develop the land for many years now, we realized last year. This year we wrote to them to show course why the land cannot be repossessed by government. They then replied and I am very satisfied about their response and/or reasons therein.” Although area MP Nkaigwa could not be immediately reached for a comment on the matter, it is suspected that he may return the question again in parliament July sitting particularly as construction has ensued at the site under unclear directorship.


At parliament, they have been told that the land belongs to government when he asked the question earlier this year. After rescinding, an impeccable source highlighted “these are clear signs of corruption trying to legitimize something that was allocated dubiously.” Meanwhile pundits say some officials in government may be having their hands “greased” on the sudden departure of proprietorship by government from the land or as a result of conflicting positions on the matter.

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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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