Recent news of BCL having attracted lucrative buyers from the cash spinning economy of Dubai was received with mixed reactions by both Selibe Phikwe residents and Batswana at large. The Selibe Phikwe Economic Revitalization strategy, launched last year November is also facing a number of challenges in delivering on the expected jobs.
Controversy surrounds BCL sale The landing of Arabic Tycoons and their constant visits to Botswana has stirred controversy, particularly on social media, media commentary and the political fraternity. The government is accused of privatizing BCL without consultation and following proper democratic steps to dispose a national asset of BCL’s magnitude. WeekendPost gathered from BCL liquidation critics that government had long wanted to privatize BCL but wanted to trick employees and Batswana by staging a fake insolvency.
“This is by far day light robbery, looking at the money used to liquidate this company and few months later we are told someone is going to buy it, why didn’t the government put BCL under judicial management and scout for investors without being harsh to employees and tricking Batswana,” commented Selibe Phikwe West Member of Parliament, Dithapelo Keorapetse.
According to Keorapetse, government had long drawn up a blueprint to loot BCL as BCL ore deposits are one of the high grades in Africa. Reports link BCL disposal masterminding to Mineral Development Corporation Chief Executive Paul Smith. Smith and his Mineral Development Corporation team have been meeting Dubai investors for the past two weeks now. According to reports associated with BCL privatization, liquidation will be manipulated to accommodate fast-tracked handing over of BCL assets to Emirates Investment Group (EIG) led by Abdulla Mangoosh.
“The Tycoons have met Liquidator Nigel Dixon Warren and we are going to witness different kind of events post March 15 after the court sitting, it is expected that final liquidation will not go through,” a source revealed. According to sources the government enclave through Advocate Sadique Kebonang is moving against time to present an attractive deal to the Arabian.
“The arrangements now are moving towards closing everything up to the favour of this Emirates, there will no longer be auction and open bidding of BCL assets as many have been made to believe for the past month, it appears the highest bidder is the Emirates and it is a done deal”
However the unclear undertakings surrounding the BCL disposal have raised eyebrows. Former Minister of Education and Botswana Ambassador to Japan, Jacob Nkate is of the view that selling of BCL assets should have been made a public knowledge, “The Minister responsible should be repeatedly reporting to parliament, to at least put the public and leaders to terms with events surrounding their assets selling,” he said. However not disputing the selling of the company to private investors, Nkate argues that some Batswana and local entities would have been better placed to pop out a stake towards reopening of the mine.
Meanwhile Minister Kebonang, who is in charge of breathing new life to the former copper nickel giant told WeekendPost that the emergency of the matter to strike a deal with the Emirates was of paramount importance before they moved to a different country. “A statement will be delivered to parliament once a direction is clear as to where the investment undertaking is going, we need Batswana’s support, let’s stay away from politics, we are looking at creating jobs here,” he said.
Meanwhile, some in Phikwe are optimistic about the possibility of the mine reopening, regardless of who the new owner is. “BCL sustained Phikwe’s economy and we really don’t care who opens it, whether it’s Motsepe the rich South African who owns Mamelodi Soundowns or the President’s friend, le one maArabea a siame (even the Arabs are fine), we just want our mine to open so as we have business,” said Philip Ngwenya, a taxi man who also hails from the SPEDU region in Bobonong.
Some Phikwe residents however expressed worry that the Arabs might come with their own labour and huge machinery hence few jobs for Phikwe locals. “The other question is will we get our jobs back?, kana manong a ja ka losika (blood is thicker than water) the Arabs are known for keeping it within the family and empowering their own,” a former BCL miner said.
Delayed implementation of revitalization projects Last year November at the commemoration of African Industrialization Day Government through Ministry of Investment, Trade& Industry unveiled the Selibe Phikwe Economic Revitalization Strategy to be implemented under the coordination of former Bank of Botswana Governor Linah Mhohlo with the first quarter of implementation expected to be evident March 1 2017, however some Selibe Phikwe Councillors have decried that the promise is yet to be delivered.
Councillor Sethulwa questioned the Mayor about the promised employment opportunities “Your Worship isn’t this the time we should be seeing job adverts and our youth queuing up since we were told that by March over 2000 jobs would be created ?” Earlier this year Minister of Infrastructure and Housing Nonofo Molefhi who is also Member of Parliament for Selibe Phikwe East told residents in one of his Kgotla meetings that Phikwe locals especially the youth should prepare their C.Vs for over 2000 jobs geared up for the first payout at the end of March 2017.
Councillor Evelyn Kgodungwe advised the authorities to engage residents and communities more to come up with inclusive ideas that are tailored for them. “We only hear of seminars and hear say about these investors, this projects, initiatives and all, whereas our people are not consulted and engaged further in revitalization undertakings.”
According to Phikwe residents and SPTC Council members it was important for even Mhohlo to have an office in Selibe Phikwe and engage residents, the business community on daily bases to get first hand information on the region’s economic issues.
Poor sanitation and drainage system Selibe Phikwe Councillors are aggrieved by the state of the town’s sanitation and the poor drainage system and say it will hinder efforts to turn the town and region into an investment attractive parameter. Speaking at a full council meeting this past week responding to Mayor Amogelang Mojuta’s address, Councillor Moses Serite of Sesame-Kagiso ward in Distance Township told the council that bad smell caused by drain spills will scare away potential investors.
“When rich people come here to scout for investment opportunities, one drive around town will scare them off because there is a disgusting smell, drainage spills, running waste water and generally poor sanitation in town,” he said adding that the situation would even chase away the Arabians. “Even the wealthy Arabians were about on newspapers will run for their health if the status quo is not changed,” he added.
The full council pleaded that a significant skate from the money allocated to Selibe Phikwe Town Council in the 2017/18 budget be allotted to fixing the town’s sanitation infrastructure and drainage network to ready the town for investors. “ It will be of no use for government to draw up an investment attraction blueprint that entails incentives under the Special Economic Zones initiative at the same time leaving the town in this state,’’ councillors told WeekendPost on Monday after the session
More trouble at Pula Steel Information reaching this publication indicates that Pula Steel Casting & Manufacturing, Botswana’s only steel manufacturing entity, is on its last legs. Currently, government financial lender Citizen Entrepreneurship Agency (CEDA) which is expected to inject capital of over 20 million pula to resuscitate Pula Steel, the brain child of BCL Polaris II and the Verma Family is thinking otherwise. Reports indicate that the Thabo Thamane led agency is objecting to pumping more money into the company under the leadership of Verma who on the other side declined giving up the company’s stewardship.
It is understood that CEDA is gearing up for an application to put Pula Steel under judicial management , although information is still sketchy, this publication was tipped off that Thamane has already put his signature to the paperwork that will be presented to Gaborone high court in a week’s time. Pula Steel, as a project put up to diversify the economy of Selibe Phikwe from mining has faced challenges since its inception and is currently being troubled by creditors who want their millions from the indebted entity.
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.”
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).
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.