BCL which was put under provisional liquidation last year October is not about to resume operation anytime soon. This was revealed by Nigel Dixon Warren the company provisional liquidator on Tuesday the 17th at a media briefing in Selibe Phikwe.
According to Dixon Warren, the 2017 February 7th date contrary to the belief of many is only a return date in which the liquidation period does not end. “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 misunderstanding making rounds in the publication circles that are also polluting public knowledge consumption’’ explained Dixon Warren.
He unpacked that on February the 7th, 2017, the High Court will decide if the companies being BCL Limited, BCL Investments, 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 “According to Warren the court can decide to extent the provisional liquidation period and delay the final winding up (complete liquidation) order if it believes necessary.
He further noted that for the final liquidation order to be delayed or not be granted, that 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 there 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 observes 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. Further lecturing on the processes after February 7th, Dixon Warren explained that after that date the real liquidation is only beginning.
In his terms “After February the 7th this year formal liquidation process commences” He observes 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 convene a formal meeting of creditors’” he said.
The creditors meetings are held so that they the creditors can prove their claims against the companies (ie 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 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 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 doesn’t always be the same person as provisional liquidator but in many cases creditors appoint the same person for continuity as the provisional liquidator would have 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 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 creditors are relatively many I will need time after February 7th to undertake this” he further stipulated. The BCL Undertaker Warren further added that the second meeting of creditors of which the reins will be on 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 explains 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 Dixon Warren 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 which BCL has shares not affected by BCL 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 seat at billions all together.
THE FUTURE OF BCL MINES
Further clearing the air on BCL recommencement of operations, Provisional Liquidator Nigel Dixon Warren unpacked the status of affairs at the mine sites, company assets and potential investors. “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 , because the finances I have cannot accommodate that” he explained.
The BCL assets custodian stipulated that there is 24 hour security at both Tati and BCL sites to secure the valuable assets and equipments at the company plants and sites. “I have had instances where it’s said that someone calls the local companies claiming the assets of BCL are auctioned requesting deposits payments , I need to clear the air on that and emphasize that members of the public must be aware of these scams, formal communication of asset disposal will be advertised.
Though no formal offers has been made yet and far from being put forth it was revealed that a number of interested parties have come forth to make their interests known, the liquidator observes that the interested firms and investors are both local and international entities and persons. “No formal offers has been made, you see BCL has been profitless , hence it currently has no value and no investor will make any offer on such bases , we will have to asses and look deep into what opportunities can be salvaged from these companies” he said, adding that such processes and assessment as well as investigations is part of his job and it will take time.
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 at the best interest of the creditors . Said Warren “To further attest to why I am saying the mine will not reopen soon ,even after sale of BCL or investor agreement ,it will take time to do restructuring , refurbishment of equipments and re-designing of shafts to start up the mine on profitability” , “No sane investor would rush to put their money in a company that has been making losses “
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” explained Warren adding that reasons to that being the 180 are still being 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 stuff and rehired some of the initially terminated, because I operate under a limited budget and time so I cannot afford incompetent stuff” he explained, Dixon Warren noted that all former BCL employees who occupied houses have been allowed to stay in the house. “We have signed lease 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, ie water and electricity ” he said explaining that the date will be probably when selling company asserts will begin.
Nigel Warren noted that having paid terminal benefits to former employee’s there was nothing more he can do as far as health services and other incentives are concerned, um told the government has taken over. 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, The decision which is believed to have been orchestrated by state owned Mineral Corporations Limited put over 4000 miners to the streets jobless and thousands households without breadwinners and consequently shutting down the economic nucleus of the whole eastern bloc of the country.
However as reports indicate that cooper and nickel prices have bounced back by 20% the man mandated to dissolve the BCL Group told weekendpost after the media briefing that resident and settlers this side of this country should not put the mine in their plans of survival for the next few months as there is still lot of work to do ,adding that if at all investors put money the mine will only resume operation in 2018 realistically
Health workers are at the front line fighting the deadly, contagious COVID-19. These workers have an immense challenge of welfare and government has since turned a blind eye to dares and crushing odds throttling health officers, particularly nurses.
Botswana Nurses Union (BONU) has once more called on government to invest in the country’s nurses and give the nursing profession dignity.
In May 2020, BONU President, Obonolo Rahube said government should, in line with the advocacy of World Health Organisation (WHO) invest more on nurses and midwives, and further advised government to address challenges that nurses are faced with. The proposal was made on International Nurses Day.
At the time, Rahube urged government to provide subsidised accommodation for nurses and midwives as it has emerged that during the fight against the Corona-virus, accommodation for nurses and midwives is very important. Rahube called on government to provide nurses and midwives with 100% medical cover.
He also called on government to introduce risk allowance for nurses and midwives, noting that as frontline workers during the pandemic, they are at high risk. Nurses also demanded Personal Protective Equipment (PPE), a matter which they lost with costs in court. Also critical during the COVID-19 era for health workers, psychological support is what BONU maintains is still lacking.
In the same year (2020), the Union raised a number of other challenges they are being faced with. These challenges, they asserted, make it testing for them to undertake their duties, especially now that COVID-19 has shaken Botswana’s already weak health system.
BONU expressed disappointment at nurses’ pay, nurses who tested positive for COVID-19 at an alarming rate, violence against nurses, nurses’ contracts which were never renewed and a poorly coordinated vaccination plan for health workers.
Clearly, nurses are not only battling the COVID-19 virus, but also government who has since refused to come to the party.
This week once again, BONU tested waters and slammed government with more demands, some of which have turned into an everyday song while COVID-19 continues to kill more nurses.
At a press conference on Tuesday, BONU President Rahube said over 800 nurses have been infected with COVID-19. Of this number, 34 nurses lost their lives due to COVID-19 related infections.
WHO and other health experts say for countries to emerge victorious from the COVID-19 pandemic, they must fast-track the roll out of vaccine. In Botswana, there is no clear explanations of how the vaccination plan is going.
The situation around vaccination is chaotic, and this is evidenced by only 28% of nurses who have been vaccinated. President Mokgweetsi Masisi is also disturbed by the COVAX programme as Botswana vaccines arrive in the country missing, every time.
Debates in Parliament on which vaccine to adopt are failing to conclude, in fact, they never gained energy. Rahube told members of the media that nurses are overworked.
“Shortage of nurses puts those available at risk. Some nurses are on isolation, quarantine and some passed on. Nurses do both testing and contact tracing so they end up working stretched hours, at times from 6am to 10pm. There is no how nurses will be able to deliver while exhausted,” he said.
He further indicated that infection control practitioners are not recognised and deployed appropriately, and some regions have shortage of commodities and supplies such as water resistant gowns (nurses are forced to re-use those availed), masks, gloves, scrubs and uniforms.
Oxygen supply is said to be in shortage, something that mounts COVID-19 deaths.
“Patients lose their lives whilst still awaiting to be put on oxygen. Psychological services are in serious need as nurses continue to lose their significant others, faced with resource constraints and many of them are not vaccinated,” said Rahube.
Accommodation still remains a huge challenge for nurses. BONU President said nurses overcrowd with families and colleagues.
In Kauxwi, four nurses share a single house, in Moshaweng two nurses share a single bedroomed house together with their families, with no electricity yet the village is powered. In Kazungula, there are only two staff houses for 11 nurses and their families.
The union stressed that the Chief Nursing Officer is not coming to the party, and the expectation is that the office should be coordinating all nursing issues at the Health Ministry. Rahube indicated that transfers have been frozen, promotions stalled and they continue to lose nursing posts to other Ministries.
In a number of recommendations, BONU urged government to consider compensation and risk allowance for staff affected by COVID-19 related deaths and those infected. “COVID-19 has been declared an occupational health illness, in essence, the employer should facilitate its occupational health division, and there are lots of occupational health nurses who are wrongly deployed, who could be running such programs at the facilities.”
In regard to vaccinations, BONU underlined that there should be clear information relating to vaccines and they should be made accessible. “Local franchise manufacturing of vaccine could use Botswana Vaccines Institute (BVI) and government should be clear and transparent concerning procurement of vaccines. It should also allow stakeholders with capacities of procuring vaccines to do so.”
Government is moving swiftly to completely overhaul public procurement — a new Bill has been tabled before Parliament this week by Minister of Finance and Economic Development, Peggy Serame and is scheduled for debate in the coming days of the current parliament sitting.
Through this Bill the country’s purse bearer seeks to dismantle existing public procurement pieces of legislation, transform, merge and form a new public procurement arrangement. The existing public procurement high command base — the Public Procurement and Asset Disposal Board (PPDB) would cease to exist.
This organisation will transition and assume the reigns of a regulator and oversight authority; the actual procurement; floating of tenders, accepting bids, adjudicating and awarding tenders will be fully taken over by Government departments accounting officers.
Accounting officers are Permanent Secretaries and statutory organisation heads and directors or any person who is responsible for the administration and day-to-day management of the affairs of a procuring entity, and any other person, who may be designated as such by the Minister under the act.
Speaking to this Bill this week, Serame revealed that the current Public Procurement and Asset Disposal arrangement will be merged with the local authority’s procurement Act.
“We will now have procurement under one roof, all overseen by accounting officers, it’s all government money coming from one port,” she said.
Minister Serame explained that PPADB will no longer be player and referee at the same time, with a view to improve efficiency and effectiveness in the regulation and management of public procurement processes.
According to Minister Serame, the new public procurement Act will promote competition among suppliers and contractors, and also provide for the fair, equal and equitable treatment of all suppliers and contractors.
PUBLIC PROCUREMENT REGULATORY AUTHORITY
Should parliament pass this bill the current Public Procurement and Asset Disposal Board (PPADB) will transition into a new body called Public Procurement Regulatory Authority.
The new Authority will be mandated with setting standards and practices for the public procurement system, regulate and control the public procurement system, ensure the application of fair, equitable, competitive, transparent, accountable, efficient, non-discriminatory, honest, value for money and public confidence in procurement standards and practices.
Furthermore the Authority will monitor and enforce compliance with the new Act and any relevant law by a procuring entity.
For standardization and ensuring of world class procurement best practices the Public Procurement Regulatory Authority will monitor, assess, review and report on the performance of the public procurement system to the Minister and advise on desirable changes, and further issue standardized bidding documents to all procuring entities
This oversight and procurement regulator will conduct periodic inspections of the records and proceedings of a procuring entity to ensure compliance with the Act.
The regulator will institute periodically, in respect of any procurement —a procurement audit during a tender process, a contract audit in the course of execution of an awarded tender, a performance audit after the completion of a contract, and an investigation at any stage of a procurement process.
The Authority will continue to keep and maintain an up-to-date register of contractors, known as the “Contractors’ Register”, in works, services and supplies, or any combination thereof, however classified.
The new Public Procurement Regulatory Authority will be governed by a board of nine (9) non-executive directors appointed by the Minister of Finance and Economic Development.
The Public Procurement Board will be charged with directing the affairs of the Authority. Day to day executive activities of the Public Procurement Authority will be run by a Chief Executive Officer who will be appointed by the Minister on the recommendation of the board.
PROCURING ENTITIES AND ACCOUNTING OFFICERS
The actual procurement will now be handled by the Accounting Officers who will lead their procuring entities. The entities will consist of the procurement oversight unit, a procurement unit, an ad hoc Evaluation Committee, the user Department; or any other appropriate structure put in place by the Government.
The Accounting Officer will be in charge of establishment of appropriate procurement structures to undertake the procurement functions under the new act, which shall be staffed at an appropriate level in line with the model structure issued by the Public Procurement Regulatory Authority.
The Accounting Officer will also be charged with establishment, as may be prescribed, of a committee within a procuring entity which will oversee procurement activities, establishment, as may be prescribed, of an oversight committee to monitor procurement activities in a procuring entity.
The primary role of the Accounting Officers will be adjudication and award of tenders, including the adjudication of a bid recommendation submitted to him/her through a procurement oversight unit.
The Accounting officer will have powers to cancel a tender process and reject a tender offer at any time prior to entering into a contract, in the manner as may be prescribed, and the Accounting Officer shall not compensate the bidder of a tender that has been cancelled.
Under this proposed Act new set of regulations and guidelines will direct procurement complaints and appeals.
COMPLAINTS & TENDER DISPUTES
A procuring entity will, after the publication of an award decision — allow a cooling-off period of 10 days in order for the procuring entity to receive and address complaints, if any, from any contractor who is aggrieved by the award decision; and not enter into a contract relating to the award before the expiration of a cooling period.
A contractor who is aggrieved by a breach of any provision of this Act or claims to have suffered or is likely to suffer loss or damages due to a breach of a duty imposed on a procuring entity shall, at the first instance, lodge a complaint before an Accounting Officer for review.
A contractor who lodges a complaint shall have the right to participate in the review proceedings before an Accounting Officer. A contractor who fails to participate in the review proceedings shall be barred from subsequently lodging the same complaint.
Under this proposed Act an Accounting Officer will not entertain a complaint after a contract has entered into force. After considering a complaint and determining that the complaint is a frivolous or vexatious complaint, Accounting Officer shall dismiss such complaint.
Notwithstanding subsection (1), an Accounting Officer may refer a complaint considered and determined to be frivolous or vexatious to the Tribunal for the Tribunal to take any appropriate action as may be prescribed.
An aggrieved person shall submit his or her complaint in writing to an Accounting Officer within 10 days from the date of the publication of an award decision by the Accounting Officer, relating to the complaint.
The Accounting Officer will not entertain a complaint unless it is submitted to him/her within the period referred to under subsection.
A contractor who is aggrieved by a decision of an Accounting Officer may appeal to the Tribunal within 14 days from the date of the decision of the Accounting Officer.
Where a contract has been concluded by a procuring entity, based on an award decision of an Accounting Officer, the contract shall be irrevocable and its execution shall proceed without interruption whether the award decision by the Accounting Officer may in itself remain disputable by a contractor through the Tribunal.
Notwithstanding subsection (5), the Tribunal may suspend and subsequently revoke or terminate the execution of a contract if in the opinion of the Tribunal, sufficient evidence has been adduced to demonstrate that the execution of the contract may cause substantial loss to the public revenue or prejudicially affect public interest.
A complainant who wishes to lodge a complaint shall exhaust the dispute resolution processes provided in this Act before the complainant refers the complaint to a court.
PUBLIC PROCUREMENT TRIBUNAL
The Tribunal will be a body established independently from Public Procurement Regulatory Authority, and shall constitute retired High Court judges or practicing attorneys who qualify to appoint high court judge.
The Tribunal shall adjudicate over any matter brought before it by a complainant for a breach of any of the provisions of this Act, or any appeal brought in accordance with the provisions of this Act.
The COVID-19 pandemic which weakened world economies had left a devastating impact on Botswana Investment and Trade Centre (BITC) existence in 2020. According to the group’s 2019/2020 Annual Report, Foreign Direct Investment (FDI) was sluggish for the first two quarters at P126 million and P426.96 million respectively. They then took an upward trajectory in Q3 and 4 at P1396 million and P1456 million respectively.
The year closed with a reduced performance at 73% for Q4. According to the financial report, export earnings opened the year at 83% which is approximately P671 million, before dropping to 81% (P1299.55 million). However, Quarter 3 experienced a slight rise in performance to 82%, or P1978.42 million before a drop in performance to close Quarter 4 at P74.9%, which was P2403.91 million.
Even if that is the case, the Centre continued to promote local investors by facilitating for local entrepreneurs to produce and find markets for their products both locally and internationally. The trend for Domestic Investment/Expansions indicated a continual upward performance surge from Quarter 1 through Quarter 4.
In percentage points, performance results reflected opening of 93% performance followed by a dip in performance to 82% Quarter 2, and then an increase to 100% in Quarter 3 and closing performance of 84.2% in Quarter 4.
For this financial year under review, BITC posted solid financial results with a surplus of P872.968, representing a decline from the previous year’s surplus of P13.991.337. The Centre started on track from the beginning of the financial year with successful execution of activities planned for the year.
However, following the subsequent onset of COVID-19 in the last quarter for the financial year, a few of the activities were negatively affected resulting from restricted cross border transfers. The impact is expected to be severe in the following financial year, especially on the Centre’s financial statements, clearly reflecting the negative impact of COVID-19.
In the financial year ended March 2020, BITC received a total subvention of P96.504.860 which represents a 5% decrease from the previous year’s subvention of P101.830.560. the Grant subvention received for the past 5 years has not been constant due to the financial constraints that the government has experienced over the years which prompted for alignment of financial resources to cover the Centre’s strategic imperatives.
For the year under review BITC’s annual FDI capital inflows realised stood at P1.456 billion against an annual target of P2 billion, which is largely attributable to more than expected performance from the Financial Services sector. The total Domestic Investment for the period was P875.5 million against the set stretched target of P952 million. The total number of jobs registered by the organisation during the year under review was 3329, against an annual target of 3340.
Notwithstanding that, BITC realised high level achievements for the year under review. Chief Executive Officer Keletsositse Olebile said facilitated to establish the Selibe-Phikwe citrus project, which has a job creation expectation of 1000 vacancies as well as the expansion of Kromberg and Shubert Company through the allocation of land for construction of 7000 square metres factory to manufacture wire harness for Mercedes Benz, with over 800 jobs expected this year.
Further, the Centre continued to deliver improved investor facilitation services to both local and foreign investors through the Botswana one Stop service centre (BOSSC). “BOSSC houses relevant government departments under one roof to provide prompt, efficient and transparent services to investors. The services offered by this Centre have grown from slightly above 130 applications for government authorisation in 2013 to 752 in the year under review,” said Olebile.
BITC continued to monitor Botswana’s performance in global competitiveness indicators such as the World Bank’s ease of Doing Business Index. “In an endeavour to improve the investor facilitation mechanism in the country, we have motivated for the drafting of a Business Facilitation Law, which will expedite the setting up and operations of businesses in Botswana.”
ECONOMIC DIVERSIFICATION DRIVE
BITC continued to respond to government’s call to stimulate direct investment and growth of local companies by procuring goods and services from locally based manufactures and services providers. The message to promote locals to actively grow the national economy has been driven through campaigns such as ‘PushaBW’ which utilised an Integrated Marketing Communications (IMC) approach. As at March 2020, local purchases constituted 84% (2019:85%) of the total procurement with foreign purchases at 16% (2019:15%).