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BTV producer has the last laugh in court

In a classic David and Goliath sequel, Botswana Television (BTV) producer, Koketso Joshua Ntopolelang this week walked out of court a victorious man. Ntopolelang won a Court of Appeal (CoA) bid wherein he sought the court to scupper his ‘dishonest’ election year transfer.


The court set aside his redeployment to the Programs Section and the transfer to the formerly Ministry of Minerals Energy and Water Resources (MMEWR). In January 2014, Ntopolelang was shifted to a less strategic division in BTV after his transfer to MMEWR was foiled by an urgent Industrial Court order.


This redeployment succeeded in extracting him from the News and Current Affairs Section which is primarily responsible for producing current affairs content. In a lead up to the redeployment, he had been apparently told by one Lesole Obonye, a Broadcasting Services Director that he was not trusted enough to head BTV’s News and Current Affairs Section, especially since it was election year (2014).


Ntopolelang’s court papers seen by WeekendPost state that Obonye remarked to Ntopolelang: “Gase gore gare bone bokgoni jwa gago jaaka o bona DPS (Deputy Permanent Secretary) a kgona go go assigner high profile assignments. Re ntse re diilwe ke go bua le bagolo and we were waiting for instructions…kana ke ngwaga wa ditlhopho. Ga se gore gare bone bokgoni jwa gago…ba batla yo ba mo tshephang.” the document reads in part.


Literally translated, Obonye told Ntopolelang that, “It is not that we cannot see your competence, as you can see, the DPS sometimes gives you high profile assignments. The delay was due to discussions with elders and we were waiting for instructions…mind you this is election year. It is not that we don’t acknowledge your competence, but they want somebody they can trust.”


Ntopolelang further noted that Obonye mentioned the phrase ‘ke ngwaga wa ditlhopo (It is election year)’ three times. However, this Thursday Ntopolelang emerged on top in his court skirmish with his bosses. A panel of three CoA Justices comprising Isaac Lesetedi, C Howie and Lord Alistair Abernathy found that Ntopolelang’s employer, being the Secretary in the Ministry of Presidential Affairs, Kebonye Moepeng had not properly consulted him regarding his transfer.


They observed that even though the judge at the previous court determined and held that Ntopolelang’s transfer to MMEWR was preceded by consultation, he had however made no finding in relation to his redeployment to another department within BTV. They further noted that in this particular case there was no material dispute between the parties as to what the law requires in relation to consultations in cases of this kind.


“The dispute was whether in the particular circumstances of this case the legal requirements have been met,” CoA determined. The trio also noted that there was no suggestion by Ntopolelang that the consultation had to take any particular form and that it was accepted that it was for the court to examine the facts and circumstances of the case and determine whether a proper consultation took place.


They highlighted that in consultation, “what follows is not exhaustive and that such consultation is not to be treated perfunctorily or as mere formality. It entails a genuine invitation to the person concerned to say what he wishes to say and a genuine consideration of what he said.”


They further continued: “Sufficient time must be given to enable the person concerned to say what he wishes to say and how to say it.” The judges also determined that sufficient time must then be available to allow the decision maker to consider what has been said and that all this must be done before a decision maker reaches his decision. If his mind is already made up before the consultation process is complete, that is not compatible with a proper consultation.”


The justices further ruled that in regard to the facts of the case it is clear that the legal requirements for a proper consultation were not met either in respect of the decision to transfer Ntopolelang to MMWER or in respect of the decision to redeploy him within the Broadcasting Services.


They also chided that it was not sufficient for Moepeng and Lesole to rely on Ntopolelang to take the initiative in commenting on the stated intention of his superiors to transfer and redeploy him. On the contrary, they stated, it was for them to take initiative and to keep an open mind until the consultation process was complete.


But neither at the meeting on 14 August 2014 nor at the meeting of 10 September 2014 was Ntopolelang given a genuine invitation to comment. Still less was an appropriate timetable set within which he could offer any comments and they could thereafter consider them before coming to a decision.


Indeed from what occurred at the meeting 14 August 2014 and the first Moepeng’s letter of 22 August 2014 it seems to me that she had prior to the meeting of 14 august decided that Ntopolelang was to be transferred to MMWER, the only aspect that remained for discussion was the date the transfer would take place.


They further said that, similarly it seems clear that it had been decided prior to the meeting on 10 September that Ntopolelang was to be redeployed within the Broadcasting services. The very next day, a day before the hearing in the Industrial Court as to whether the interim interdict was to be granted on 5 September 2014 was to be confirmed, Obonye wrote his letter of 11 September.


They further said that even though his redeployment within Broadcasting Services was not illegal, “in my opinion it would be stretching credulity too far to say that it was altogether unconnected with what the Industrial Court might do on 12 September.” Ntopolelang was represented by attorney, Mboki Chilisa of Collins Chilisa Consultants.

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13 AUGUST 2022 Publication

12th August 2022

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DIS blasted for cruelty – UN report

26th July 2022
DIS BOSS: Magosi

Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.

Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.

She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”

Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.

On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.

“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.

One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.

The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”

The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.

Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.

Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.

The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.

The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.

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Stan Chart halts civil servants property loan facility

26th July 2022
Stan-Chart

Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.

This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.

He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.

Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”

He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.

Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.

“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.

In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”

In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.

He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.”  Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.

Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.

He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”

Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.

“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.

“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said.  Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.

Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.

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