BCL is not likely to resume operation anytime soon, the company provisional liquidator, Nigel Dixon Warren revealed this week Tuesday. Furthermore, Dixon Warren revealed, February 7 2017 contrary to popular belief, is not the date in which the liquidation period ends, but only a return date where the court will decide the final fate of the company.
“There is absolutely no intention to restart operation at the mines , no prospects or what so ever, not anytime soon ,either after February 7th or 1st meeting of creditors and we are looking at possibly beyond 2017,” he said emphasizing that currently there are no resources available to finance operations.
“I have currently placed the mines under care and maintenance, that decision was very paramount to safeguard the assets and preserve the company value,” he explained. Dixon Warren revealed that he was advised by professional smelter experts to shut down the BCL smelter which is the most valuable asset of the company, explaining that it would be very costly to keep it running until final liquidation is complete.
“When I arrived here the Smelter was shut down from 7th October as per order by the main shareholder; the government, but the BCL engineers advised me to restart it and operate it at a warm temperature as it gets damaged and looses value when it’s not operational, but I later engaged an expert who consulted the manufactures of the smelter and we arrived to a conclusion that it would cost us 5 million pula per month on fuel alone to keep the smelter operational , thus I decided to shut it down.”
“It is not usually the procedure within liquidation dealings for the liquidator to address media and issue out information to the public, but considering the amount of public interest in this matter, I have seen it fit to assemble the media and clear out certain misconceptions and misunderstandings making rounds in the publication circles that are also polluting public knowledge consumption,” further highlighted Dixon Warren at the Tuesday press briefing in Selibe Phikwe.
He unpacked that on February the 7th, 2017, the High Court will decide if the companies being BCL Limited, BCL Investments, and Tati Nickel Mine should be placed under final liquidation or the initial reasons presented to the Court can be dismissed. “The order granted in 9th October 2016 to wind up the companies was only a provisional liquidation or rule nisi,” he said. “Per the court order any interested party may apply to high court to prevent the Court not to grant the final order which winds up the company’s liquidation.”
According to him the court can decide to extend the provisional liquidation period and delay the final winding up (complete liquidation) order if it deems it necessary. He further noted that for the final liquidation order to be delayed or not be granted, it would require a clear demonstration satisfactory to the court that the companies were not insolvent.
“That’s to say who ever the interested party logging that application would be, will have to prove beyond reasonable doubt why the winding up petition should be dismissed, of which according to my assessment all the three companies are fatally insolvent, like they have no money or funds or whatsoever and have been making massive losses,” he said.
BEYOND FEBRUARY 7TH 2017
Nigel who is a well experienced professional housed under KPMG Chartered Accountants Advisory observed that it is in the best interest of all the creditors that the companies be finally wound up into liquidation process followed to its conclusion. According to him, “After February the 7th this year, the formal liquidation process commences.” He further added that the winding up process includes holding meetings of creditors and sale of assets, a process he revealed takes months to over a year.
“What happens is that at the return date if there is no application to dismiss the final liquidation order, the Master of the High Court who oversees the liquidation now takes the reins and convenes a formal meeting of creditors.” Furthermore, he revealed, creditors meetings are held so that they (creditors) can prove their claims against the companies (i.e. have them recognized as the creditors in the liquidation) so that they can issue instructions to the liquidator and ultimately receive payment against their claim (a dividend) at the end of liquidation process.
This, he said, would be if there are sufficient funds realized in the sale of assets to cover the costs of the liquidation and pay a dividend to creditors. Warren Dixon also revealed that erstwhile directors of the companies will be required to attend the two meetings of creditors so that they can answer questions by creditors and the liquidator.
“I am only a provisional liquidator appointed by the High Court, at the 1st meeting of creditors, the proven creditors now nominate the final liquidator, this isn’t always the same person as provisional liquidator but in many cases creditors appoint the same person for continuity as the provisional liquidator would already be familiar with the liquidation and insolvent company records,” he explained. He also indicated that at that meeting, he as the provisional liquidator will present a report written in terms of Section 44 of the companies Act.
“This report provides creditors with details of assets and liabilities of the companies and a reason as to why the entities failed in the first place. It was also observed that if the BCL companies are put on final liquidation on the 7th February 2017 it is expected that the first meeting of creditors be held in April 2017.
Dixon-Warren noted that the date of the meeting is not set by the provisional liquidator but by the Master of the High Court. “I have to prepare a report and submit claim forms to all known creditors. Considering that these companies are relatively many I will need time after February 7th to undertake this,” he further stipulated.
The BCL Undertaker further added that the second meeting of creditors of which the reins will be with the final liquidator who might not be him, will give an opportunity to creditors to further prove their claims. “Ordinarily this second meeting occurs between three to six months after the first, and the final liquidator will report on the affairs of estate and will be given direction from the creditors as to the sale of the assets.”
THE RUSSIAN NORILSK MATTER
The Liquidator also cleared misconceptions on the Russian Norilsk matter which has been making rounds , BCL had entered into an a share purchase agreement with Norilsk Nickel Mauritius and Norilsk Nickel International Holdings Limited to acquire Norilsk interest in South African Nkomati Mine and Tati Nickel Mine in Francistown.
Dixon Warren explained that prior to the liquidation there was a dispute between parties to the agreement as to whether the conditions precedent was met and therefore whether the contract has full force and effect. “Since Norilsk has taken the matter to court at the High Court of Botswana and in London, there are no further comments I can make on the issues,” he said observing that once the issue is dealt with at the court of law, if the case went in favor of Norilsk they can approach him and claim their rightful argument as a creditor He also revealed that BCL has a number of creditors which the company had entered into operational contracts with.
He further clarified that Pula Steel, contrary to the belief of many, is not part of BCL or BCL Investment, stating that it’s a separate entity in which BCL has shares and is not affected by BCL’s liquidation. “As a matter of fact Pula Steel owes BCL millions in dividends, it is actually one of the few debtors which will have to pay us soon,” he explained adding that RealZim , MTO, Glecon , Zimbabwean Copper companies also owe BCL a few chunks of millions, but emphasized that BCL creditors sit at billions all together.
Though no formal offers have been made yet and far from being put forth, the liquidator revealed that a number of interested parties, both local and international have expressed interest in the mine. According to Warren any conclusion to sell will be considered after the second meeting of creditors observing that it will only be looked into if it’s in the best interest of the creditors. He however stressed that even if sold, the mine would need time before reopening as it would require restructuring, refurbishment of equipment and re-designing of shafts to start up the mine on profitability.
FORMER BCL EMPLOYESS
“As we all know I was forced to terminate over 4000 employees contracts, I have paid terminal benefits to almost all of them, only just over 180 have not yet received their benefits,” he explained, adding that reasons were that the 180 are still yet to be contacted, some changed addresses amongst other reasons.
He observed that he initially retained about 400 employees to help him with care and maintenance but have reduced the number to just over 350. “I have fired some of my staff and re-hired some of the initially terminated, because I operate under a limited budget and time so I cannot afford incompetent staff,” he asserted.
Furthermore, he revealed that all former BCL employees who occupied staff houses have been allowed to stay in the houses. “We have signed leases with them up to 31st October 2017, and as per our agreement the occupants will not be paying rent in return we want them to keep the houses in good shape and suitable state, however as stated before, occupants will pay for their own utilities bills,” he said”.
BCL which has been in operation for the past 40 years was put under provisional liquidation last year October 9th after operations were halted 2 days earlier. Meanwhile, reports indicate that copper and nickel prices have bounced back by 20%.
Despite the President Dr Mokgweetsi Masisi and his Namibian counterpart, Hage Geingob giving an impression that the borderline security disputes are a thing of the past and that diplomatic ties remain tight, fresh developments from Namibia suggest otherwise, following Geingod’s close confidante’s attack on Botswana and its army.
Giving a Zambezi region state of the affairs last week, a Geingob-appointed governor of Zambezi region, Colonel Lawrence Ampofu, a retired Colonel in the Namibian Defence Force, former plan combatant during the liberation struggle of Namibia, in a written speech, charged at the BDF and condemned their killings of the Namibians as unacceptable.
“The security situation within our borders remains calm. The incidence of the Botswana Defence Force shootings and wanton killings on the Nchindo Brothers on 05 November 2020 and other 37 Namibian lives lost since independence remain a serious challenge with our neighbor, Botswana.
Our residents living along the Chobe, Linyanti and Kwandu rivers are living under constant threats, harassment, fear, intimidation and killings and such activities are condemned and not acceptable,” he said under the safety and security title.
The attack suggests that Namibia has not bought Botswana’s story. Ampofu was part of the entourage that accompanied Geingob to the three Nchindo brothers and their cousin who were gunned down by the BDF, and is reported to be privy to the details of the unpublished Botswana-Namibia joint investigations report about the killings as a governor or political head of the region which has eight electoral constituencies.
The report contains the sensitive details of how the three Namibians referred as poachers by the BDF – and Fisherman by the Namibian government were gunned down on 5 November last year along the Chobe River. They were Tommy (48), Martin (40) and Wamunyima Nchindo (36), and their cousin Sinvula Muyeme (44).
His views are not really in contrast to his President’s views who also described the BDF as trigger happy in a scripted report to his cabinet.
The Zambezi region is located in the extreme north east part of Namibia and covers a total of 14,667.6 square kilometres. “We share borders with Angola, Zambia to the north, Zimbabwe to the east and Botswana to the South,” he said.
Sampofu was first appointed governor of the former Caprive Region in 2010 by the former Namibian president, Hifikepunye Pohamba and was reappointed as Zambezi governor by President Dr.Hage Geingob in 2015, a term running to 2025.
37 Namibia residents killed by Botswana army so far
Sampofu is a man who continues to insist that Botswana has killed 37 residents of his region. A video posted by the Namibian Broadcasting Corporation (NBC) shows him alleging that at least 37 Namibians were killed by the BDF, after he met with the community at Impalila.
“It is true, the BDF started long ago. As we speak 37 lives have been lost here in Impalila along the Chobe river going to Linyanti and Kwado rivers up to Lizauli. All those families lost their loved ones,” Ampofu said in the video posted by NBC.
It is not known how the BDF, which has maintained their position that the Namibians were engaging in illegal activities of poaching, treats the constant attacks by the Namibian authorities, but they have repeatedly vowed to continue protecting the country’s sovereignty and natural resources.
Botswana’s premier brewer and leading distributor of beer, Kgalagadi Breweries Limited (KBL), this month dragged the government of Botswana to court after President Mokgweetsi Masisi imposed an alcohol ban with immediate effect. KBL labelled the decision as unjustifiable, irrational and that it overrides the rights that are enshrined in the constitution.
This week, Masisi through attorneys representing the government disparaged the case in his written affidavit of KBL’s application, referring to it as frivolous and that it ought to be dismissed with costs on a punitive scale.
In his court papers, Masisi reminded KBL that Botswana is a Republic whose laws find validity from the constitution, and in terms of Section 17 of the constitution the President is empowered to declare a State of Emergency and that it is a common cause that Botswana is under such state.
“It is common course that there is in existence emergency powers (Covid-19) Regulations 2020 as amended from time to time which is solely designed to regulate the Covid-19 pandemic,” he said.
Masisi pointed out that he denies that the application before Court is proper such as to challenge the lawfulness and validity of a regulation made and a notice published in the exercise of a legislative function in accordance with the Emergency Powers Act which empowers the President to make regulations as appear to him to be necessary and expedient for securing public safety.
Furthermore, the President revealed that the decision to ban alcohol sales was not arrived at willy-nilly, but rather that there had been careful considerations that the risks posed by Covid-19 had increased and therefore it was expedient and necessary to suspend all liquor licenses.
Moreover, Masisi denied that the decision to reinstate the ban should be made by the Director of Health Services as indicated by KBL in their nature of the application, “the Director is to cause the notice to be published in the Gazette after consultation with the President.”
Masisi indicated that the role of the Director of Health Services is to publish a regulation made by the President.
He further, reminded KBL that the power to make regulations in a State of Public Emergency in accordance with the EPA lies with the President, “such power includes the amendment of any enactment, suspending the operation of any enactment or modification of an enactment.”
According to Masisi, his decision to ban alcohol sales was based on evidence provided by the Director of Health Services who indicated to him that there was a sudden spike in the transmission of the Covid-19 virus following the reinstatement of liquor licenses.
Another piece of advice tendered by the Director of Health to Masisi was that bars and other liquor outlets were some of the major hotspots in the sense of such being high-risk areas at which the virus spread rapidly.
“Alcohol was one of the major causes of non-compliance with the health protocols that were put in place to control the spread of the Covid-19 virus. Further, there was an indication that more arrests were made on people failing to adhere to Covid-19 protocols more particularly at places where there were gatherings,” he contended.
He pointed out that therefore, it was expedient and or necessary to preserve lives and to reduce the risks of transmissions of the virus to reinstate the suspension of liquor licenses.
Moreover, the President says that it must be noted that he avers that the Director of Health Services is a credible source on matters of public health of which he also accordingly gave due weight to the Director’s advice on deciding to reinstate the ban through the impugned notice.
“I am aware and was always aware at the time of promulgating the regulation complained of that it shall negatively affect some sectors of the economy. However, after due consideration and receipt of advice, I decided to give priority to the safety and health of the nation,” Masisi said.
He presaged KBL that it would not be prudent and in the best interest of the nation to ignore a health emergency such as Covid-19 and gave preference to trading and making of profits by the applicant. “The results would only be catastrophic to the extent that when we emerge from the scourge we would be left with a depleted and ailing nation from Covid-19 and its side effects.”
Furthermore, his written affidavit further pointed out that the decision to reinstate the ban on alcohol was taken notwithstanding understanding and appreciation of the economic hardships that would befall the country.
However, he said he deliberately made the decision based on the evidence provided to him by the Director of Health, whose evidence he believes to be credible to give public/safety and health priority over economic considerations in some sectors.
In making the decision, Masisi states that he was and considered different options including allowing for sale of alcohol consumption off premises, however the evidence he had been provided with suggested that such other alternatives would not achieve the overall objective of securing public safety and health by reducing the risk of the spread of the virus.
“By the time I imposed the ban, alcohol was already being sold for consumption off-premises. This did not work. The information provided to me by the Director and the Presidential Task-Force team demonstrated that consumers purchased alcohol and then loitered and consumed it within the peripheries of bars and other liquor outlets,” he said.
Attached to the affidavit as emphasis, were photographs and videos of Gaborone West, Phase 4 in mid-June 2021, which he explains circulated on social media and was brought to his attention.
“I need not say much about the photos as they depict a crowd exceeding 50 gathered at the parking area of a bar. There is little or no regard to Covid-19 protocols. It was clear to me and my advisors, including the Director of Health Services and members of the Presidential Task-Force team that the total ban of alcohol was necessary to manage the risk of increase in infections, to understand what seems to have led to an increase in the risk of infection when alcohol is present I was advised by the Presidential Task-Force team that scientifically there has been evidence that alcohol narrows physical distance,” he argued.
Masisi says that allegations made by KBL are serious allegations of infringement of fundamental rights yet they fail to state how imposition and reinstatement of the suspension of liquor licenses out of necessity and expediency of the health of the nation infringes on the rights as alleged.
In an embarrassing turn of events that depicts disintegration in government communication on the fight against COVID-19, President Mokgweetsi Masisi and Assistant Minister of Health & Wellness, Sethomo Lelatisitswe gave two conflicting statements on the same matter, same day, just minutes apart.
The Commander-in-Chef told health practitioners and residents in Ramotswa that the COVAX facility has scammed African countries after billions were paid in a crowd funding effort to procure COVID-19 vaccines in bulk.
“We have pumped money as developing countries of the African continent into the COVAX Facility but the returns were not satisfactory, they cheated us,” the President said in Ramotswa.
According to President Masisi, the COVAX facility Vaccine only came in bits and pieces, frustrating the continent ‘s head immunity targets amid rapidly spreading Delta Variant which is currently reversing all progress made by Africa in containing the contagious virus.
“What we are getting is very small portions of the vaccine, they keep telling us that there is shortage of supply, this is not fair, but we have paid in advance, however what can we do, we have no choice but to spend more money and look for other avenues of securing other available vaccines,” he said.
Meanwhile in Gaborone, Assistant Minister of Health and Wellness told Parliament that vaccine from COVAX facility is anchoring Botswana’s vaccination program.
“I am not aware of such information that COVAX facility is not delivering as expected, we are actually bolstered by COVAX facility in this country,” he said responding to a question from Mahalapye West Member of Parliament David Tshere who is also Chairman of Parliament Committee On Health and HIV/AIDS.
“We have received doses as ordered from the COVAX facility, and we are still receiving more, I have not seen that information which is purported to have been revealed by the President, unless its new information, we as the Ministry we are not aware of any frustrations by the COVAX facility,” he said.
COVAX is co-led by the Coalition for Epidemic Preparedness Innovations (CEPI), Gavi and the World Health Organization (WHO), alongside key delivery partner UNICEF.
Its aim is to accelerate the development and manufacture of COVID-19 vaccines, and to guarantee fair and equitable access for every country in the world.
The facility is a global coalition that works to ensure fair and equitable access of COVID-19 vaccines around the world. So far, 190 countries have joined the COVAX initiative, including all 22 countries in the Eastern Mediterranean Region.
The COVAX Facility aims to have 2 billion doses of COVID-19 vaccines available for distribution across the globe by the end of 2021, targeting those most at risk (e.g. frontline health workers) and most vulnerable severe diseases and death (e.g. elderly and people with co-morbidities).
On other vaccination issues President Masisi revealed, still in Greater Gaborone vaccination centre visits, that Botswana has placed orders with Pfizer, a United States vaccine producer noting that they have promised to deliver next year.
Meanwhile, government kick-started phase two of the Covid-19 vaccination program this week, opening up for ages between 30 and 54.
President Masisi revealed that this was done because some elderly were reluctant to be inculcated.
“We can’t take forever trying to convince people to take vaccine, we moved to the next age segments because we cannot afford to have vaccines-which are already in shortage supply to just lie there,” he said.
On Friday, Ministry of Health revealed that it was receiving large numbers of people below the age of 55 lining up to be vaccinated.
In a statement the Ministry of Health said it, “acknowledges the huge turnout that marked the commencement of the Phase two COVID-19 vaccination program”.
Given this high turnout, especially in the Greater Gaborone region, the ministry announced an extension of operation hours in order to serve the huge crowds that had come for vaccination.
Of the nearly 85 000 doses that were being doled across the country as first doses, the majority of the Greater Gaborone vaccination sites were already getting depleted by 1800hrs on 22 July 2021.
As a result of this development, the ministry took a decision to discontinue the extended hours of operation announced yesterday for vaccination sites in Gaborone.
This means that vaccination sites in Gaborone and elsewhere in the country which still have some vaccines, will offer them in the normal working hours and days of the week.
The Ministry says it appreciates the great desire to be vaccinated shown by thousands of citizens and residents of this country and wishes to assure them that it will continue to expedite their vaccination every time vaccines become available. As has been communicated in various fora, more vaccines are expected in August 2021.
As at July 2021, Botswana has so far received 62, 400 doses of AstraZeneca/COVISHIELD bought through the Covax facility, 30,000 doses of AstraZeneca vaccine donated by the Republic of India, 19, 890 doses of the Pfizer vaccine bought through the COVAX facility, 200, 000 doses of the Sinovac vaccine, donated by the Peoples Republic of China and another 200, 000 doses of the Sinovac vaccine bought through bilateral negotiations with Sinovac company in China.
“We encourage Batswana to remain hopeful that although it’s taking longer than anticipated, enough COVID-19 vaccines will eventually arrive in our country. We urge them to always strictly abide by all COVID-19 protocols so that they protect themselves and others from this deadly virus,” the ministry said.