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BCL faces P3 billion lawsuit

The embattled BCL mine now faces legal action over an acquisition deal worth 3 billion Pula that it initiated in South Africa but has now failed to see through.

For a period of two years since 2014, BCL was locked in the process of acquiring a 50% ownership of Nkomati mine in South Africa. The transaction was finally given the green light by South Africa’s Mineral Resources Minister, Mosebenzi Zwane, in August this year.

After going through all the necessary processes for acquiring the stake, BCL then failed to trigger the final process of the exchange of shares and the P3 billion payment because it simply did not have the money.

BCL said that at the time it negotiated the acquisition the market was still profitable but when it finally came to fruition, it had become unprofitable.

“The reality of the matter regarding Nkomati is that even though the transfer was approved by the Mineral Resources Minister in South Africa, BCL was simply not in a position to pay, so we never got the ownership of that company,” Permanent Secretary in the Ministry of Minerals, Green Technology and Energy Kgomotso Abi stated.

“Clearly they have their legal options that they can exercise and at this juncture I am not willing to speculate on what action they will be taking,” Abi added.

The move to acquire the South African asset was made after the Polaris II strategy that put the remaining years of life for BCL at 10 and forced management to look elsewhere to continue business by smelting ore at BCL.

Chairman of BCL’s now dissolved board of directors, Dr Khaulani Fichani stated that the South Africans have indicated that they will indeed sue for the P3 billion and that there has been a flurry of communication between BCL’s legal minds and that of Nkomati owners, Norsirlk Africa.

“Now when you get the ministerial approval from South Africa, that they call the section 11 approval, that is a share transfer, now that means that that agreement has now been completed, in other words when that share transfer was approved, BCL owes Norisikl Africa an amount close to P3 billion. It’s the kind of situation we are in, where is that money going to come from? We could either wait for the letter of demand that says listen, we are now following this agreement we signed and according to the agreement, you owe us P3 billion, and we don’t have P3 billion, so that’s when we seek the protection of the courts,” Fichani related.

He further continued: “They promised us that they reserve their legal right, which means that they are going to sue for the P3 billion and this was the real danger because if they came and sued they would control the liquidation process.’’

“There was concern that they would not have the same interests as us because with individual creditors, they would indicate what they want to attach, then sell and leave, but if you do it yourself, as we have done it with a provisional liquidation, we ask ourselves, what can be done?” said Fichani.

Fichani further indicated of the deal with the South Africans: “that agreement was started in 2014 and we got the ministerial approval in August. That meant that we now actually had to make good on our intention to acquire that asset. But the sad thing is that when we talk about the mining business…the prices are cyclical so when the deal was concluded, it was concluded at a time when metal prices were healthy…and at the time of conclusion the metal prices had taken a 180 degree turn and there was no longer a business case for us to do that.’’

“So, our ability to actually follow through with that became a serious liability,’’ he further added.

Furthermore Fichani revealed that between the two options of being liquidated by a creditor or actual liquidation by themselves, they chose the latter as it gave them some level of protection. “In trying to understand why we are here today, in this situation we are in, if you are not able to meet your obligations really, you need some form of protection and the route that was chosen was to seek compulsory liquidation by the shareholder,” Fichani said

He also said that the Nkomati deal had gone through a robust acquisition process that involved both legal and financial transactional advisors. “Just to give the assurance that when you do a deal such as the Nkomati it is not just one individual involved, you are involving the lawyers, and you’re involving the banks, so all of those processes were ticked, it’s not one individual, the banks do their due diligence…we then got our team to do our due diligence as well. All of these steps were done,” Fichani said.

The BCL mine has now been put under the curatorship of Nigel Warren Dickson of audit firm KPMG. Dickson was appointed by the High Court on Sunday to determine the way forward for the mine and in his hands and mind, lies and weighs heavily, the fate of 5000 miners.

However, Abi also stated that at present the liquidator is now in charge of the mine and by extension its future. He further said that the liquidator will determine whether the mine’s assets can be salvaged such as several shafts in Selibe Phikwe which he said “can be worth a profit’’.

“What I wish to say now in terms of who is in charge, it’s the liquidator who can make decisions regarding the of the future of the mine but obviously he has not been part of the BCL situation so in fact he will be in consultation with the shareholder being government and BCL management so that whatever he decides, he will have the relevant information to make the rightful decisions,” Abi declared.

Fichani also stated that among other options, the liquidator will also be charged with assessing whether BCL cannot find a partner so that, “this is not a 100% government owned mining company”.

Dickson is expected to finish his job in a period of four months and thereafter hand in his report back to the High Court. Among a raft of options on the table includes the final liquidation of the mining company, restructuring BCL to operate in a different form or closure of the BCL mines.

He further said that the cost of extracting a pound of nickel at BCL had been exorbitant peaked at $8 while the price for the same pound was only $4. “This then means that for each pound we were producing there was a deficit of $4 per pound,” Fichani said.

He also stated that the liquidator will also have to look at what is to be done to change the current production costs at BCL, something he said the board had battled with for some time.

Fichani further stated that the Polaris II strategy has in fact not failed. “Instead it has presented an opportunity that even the liquidator, considering the business case of BCL now, that part of its centre of gravity clearly is shifting towards Tati. Remember we are saying that, the mines that we have at BCL are old mines, deep mines, we are talking about mining more than 2 kilometres underground. That is a challenge on its own, so our centre of gravity is being helped by the fact that we have Tati on board,” Fichani stated.

He further said that government’s injection of funds and Polaris strategy was beneficial because it cleaned the balance sheet of BCL making it attractive to investors. He also said that even the Nkomati deal materialised because of the company’s clean balance sheet. “There was no way we were going to get a partner if the company’s balance sheet declared that there were huge debts there.”

In terms of the quality of the leadership of BCL, Abi said: “Regarding the competence of the management or the board, hindsight is such a good teacher, anybody with the benefit of hindsight can say we could have done this differently and so forth.”

“Obviously there are things that we could have done better…At the core of things is: if you sell a product at $4 while your operational cost was $8, can you make a profit?”

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WIN drills media executives on Sexual Harassment

27th November 2020
Sexual Harassment

As the media industry comes full circle with sexual harassment policies in the workplace, media houses have been urged to ensure that this process cuts a wide swath so as to broaden the buy in.

Media organizations have begun to reassess and revise their sexual harassment policies as WIN continues to heighten a campaign against sexual harassment in the workplace. All the while a handful of organizations are either at drafting or implementation level of the policy.

To help media organizations crack down on sexual harassment, WAN-IFRA Women In News (WIN) held its 15th Round Table Meeting (Virtual) on 5th November, 2020 aimed at furthering sensitisation on the subject.

Media executives from Sub-Saharan Africa who attended the Roundtable meeting were motivated to climb on the bandwagon to address sexual harassment in the workplace.

A renowned expert in human resource concepts, Carin Anderson, shared on managing and preventing sexual harassment in news organisations. Anderson explored on essential tools that could assist organisations to navigate sexual harassment complaints effectively.

Anderson cautioned media executives against condoning a culture of Sexual Harassment. Linking sexual harassment to the current situation where COVID-19 has put many media houses in the red, Anderson cautioned it could negatively affect productivity.

She said staff could be forced to exit organisations, a development that will ultimately affect the financial performance of the business.

By hook or crook, organisations need to draft and implement comprehensive sexual harassment policies that are comprehensible to staff. According to Anderson, media executives must ensure of policies that have a prevention and cure approach while at the same time avoiding reactionary approaches.

She is of the view that a thorough sexual harassment policy could protect brands, would-be victims and the organisation untainted culture.

While the debate on sexual harassment has been dominated by fits and starts, of late progress has been by leaps and bounds.  Anderson opined that conducting anonymous surveys continues to determine the culture of an organization hence helps create conducive working conditions for employees.

She observed that such surveys are very important because everyone is given a chance to air their views or concerns. In doing so, employees will feel comfortable and free to share their experiences.

Anderson further said anonymous surveys can also help to depict any unwanted behaviours in an organisation. Such surveys promote the culture of calling a spade a spade. She advised all media partners present at the meeting to create a safe and clean environment for their employees than to wait for the symptoms of sexual harassment to manifest.

“Organisations need to implement the policy and create more awareness through training. In order to create more awareness organisations need to come up with code of conduct and set procedures that promote zero tolerance for sexual harassment,” she said.

WIN executive Director, Melane Walker denoted that sexual harassment happens everywhere; and it is very important to have an internal policy that deals with it. Having a written internal policy has helped WIN to significantly navigate sexual harassment quandary, she said.

All participants were encouraged to have a Sexual Harassment policy and to share it with everyone in the organisation.

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Plight of GBV amid Covid-19

26th November 2020
16-days-of-activism

The United Nation’s UNiTE campaign has marked the beginning of 16 days of activism against Gender-based Violence which will end in December 10 2020, under the global theme, “Orange the world: Fund, Respond, Prevent, Collect!”

The UN Secretary-General’s UNiTE by 2030 to End Violence against Women campaign (UNiTE campaign), managed by UN Women — is a multi-year effort aimed at preventing and eliminating violence against women and girls around the world.

The UN Women’s generation equality campaign emphasises the call for global action to bridge funding gaps, ensure essential services for survivors of violence during the COVID-19 crisis, focus on prevention, and collection of data that can improve life-saving services for women and girls.

Furthermore, the UN Secretary General’s report maintains that this year is like no other. Even before Covid-19 hit, violence against women and girls had reached pandemic proportions.

Globally, according to United Nations, 243 million women and girls were abused by an intimate partner in the past year.

Meanwhile, less than 40 percent of women who experience violence report it or seek help.

Evidently they suggest that as countries implemented lockdown measures to stop the spread of the coronavirus, violence against women, especially domestic violence, intensified- in some countries, calls to helplines have increased five-fold.

“In others, formal reports of domestic violence have decreased as survivors find it harder to seek help and access support through the regular channels. School closures and economic strains left women and girls poorer, out of school and out of jobs, and more vulnerable to exploitation, abused, forced marriage, and harassment,” said the UN.

According to the UN, in April 2020 as the pandemic spread across the world, the UN Secretary-General called for “peace at home”, and 146 member states responded with their strong statement of commitment.

“In recent months 135 countries have strengthened actions and resources to address violence against women as part of the response to Covid-19. Yet, much more is needed,” said the report.

Moreover, they submit that as today, although the voices of activists and survivors have reached a crescendo that cannot be silenced or ignored, ending violence against women will require more investment, leadership and action.

“It cannot be sidelined; it must be part of every country’s national response, especially during the unfolding COVID-19 crisis,” contended the UN report.

For the 16 Days of Activism, UN Women handed over the mic to survivors, activists and UN partners on the ground, to tell the story of what happened after COVID-19 hit.

According to Dubravka Šimonovic, special rapporteur on violence against women, there is urgent need to end pandemic of femicide and violence against women.

Ahead of the International Day for the Elimination of Violence against Women, she emphasizes that as the world grapples with the devastating impact of the COVID-19 pandemic and its negative impact on women, a pandemic of femicide and gender-based violence against women is taking the lives of women and girls everywhere.

Therefore, she is calling on all States and relevant stakeholders worldwide to take urgent steps to prevent the pandemic of femicide or gender related killings of women, and gender-based violence against women, through the establishment of national multidisciplinary prevention bodies or femicide watches/observatories on violence against women.

These bodies should be mandated to 1) collect comparable and disaggregated data on femicide or gender-related killings of women; 2) conduct an analysis of femicide cases to determine shortcomings, and recommend measures for the prevention of such cases, and 3) ensure that femicide victims are not forgotten by holding days of remembrance.

“Data this mandate has collected since 2015 through my Femicide Watch initiative corroborates the data available from the UN Office on Drugs and Crime, and indicates that among the victims of all intentional killings involving intimate partners, more than 80% of victims are women.  Many of these femicides are preventable. Since 2015, a growing number of States have either established femicide watches or observatories, and in an increasing number of countries, it is the independent human rights institutions, civil society organizations, women’s groups and/or academic institutions that have established femicide watches or observatories,” she argued.

GBV in Botswana

UNFDP (United Nations Population Fund) Botswana cites that, locally over 67 percent of women have experienced abuse, which is over double the global average.

“Gender-based violence undermines the health, dignity, security and autonomy of its victims, yet it remains shrouded in a culture of silence and normalization. Victims of violence, the majority of which are women and girls, can suffer sexual and reproductive health consequences, including forced and unwanted pregnancies, sexually transmitted infections including HIV, and even death,” indicated UNFDP

In his 2020 State of the Nation Address (SONA) he delivered on Monday 9th November at the Gaborone International Convention Centre (GICC), President Mokgweetsi Masisi said government is concerned about the snowballing of GBV incidences, saying, they have prioritized drafting of a Sexual Offenders Bill to be tabled during the sitting of the 12th Parliament.

“The Bill will establish a Sex Offenders’ Registry to record and publicise names and particulars of all persons convicted of sexual offences. To date twelve districts have set up the District Gender Committees in Chobe, Kweneng, Kgatleng, Kgalagadi, Maun, Serowe, Selibe-Phikwe, North East, Bobirwa Sub District, Mabutsane Sub District, Goodhope Sub District as well as Mahalapye Sub District. These committees will promote gender equality and women’s empowerment, and also address gender based violence,” Masisi said.

The President highlighted that the Botswana Police Service, which has been dealing a lot with GBV cases has taken swift action and introduced a Toll-Free number for reports on gender based violence. He further indicated that the Police will establish a Gender and Child Protection Unit

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Transgender persons in Botswana live a miserable life

23rd November 2020
Transgender persons

An international report complied in South Africa dubbed ‘Legal Gender Recognition in Botswana’ says that the transgender and gender non-conforming people in Botswana live a miserable life. The community experiences higher levels of discrimination, violence and ill health.

In this report, it has been indicated that this is because their gender identity, which does not conform to narrowly define societal norms, renders them more vulnerable. Gender identity is a social determinant of health, which means that it is a factor that influences people’s health via their social context, their communities and their experiences of social exclusion. The Ministry of Health and Wellness has recognized this, and transgender people are considered a vulnerable population under the Botswana Second National Strategic Framework for HIV and AIDS 2010-2017.

In a recent study that shed light on the lived experiences of transgender and gender non-conforming people in Botswana, transgender persons often experience discrimination because of their gender identity and expression. The study was conducted by the University of Cape Town, LEGABIBO, BONELA, as well as Rainbow Identity Association and approved by the Health Ministry as well as the University of Botswana.

Of the 77 transgender and gender non-conforming people who participated in the study, less than half were employed. Two thirds, which is approximately 67% said that they did not have sufficient funds to cover their everyday needs. Two in five had hidden health concerns from their healthcare provider because they were afraid to disclose their gender identity.

More than half said that because of their gender identity, they had been treated disrespectfully at a healthcare facility (55%), almost half (46%) said they had been insulted at a healthcare facility, and one quarter (25%) had been denied healthcare because of their gender identity.

At the same time, the ‘Are we doing right’ study suggests that transgender and non-conforming people might be at higher risks of experiencing violence and mental ill-health, compared to the general population. More than half had experienced verbal embarrassment because of their gender identity, 48% had experienced physical violence and more than one third (38%) had experienced sexual violence.

The study showed that mental health concerns were high among transgender and gender non-conforming people in Botswana. Half of the transgender and gender non-conforming study participants (53%) showed signs of depression. Between one in four and one in six showed signs of moderate or severe anxiety (22% among transgender women, 24% among transgender men and 17% among gender non-conforming people).

Further, the study revealed that many had attempted suicide: one in three transgender women (32%), more than one in three transgender men (35%) and three in five gender non-conforming people (61%).

International research, as well as research from Botswana, suggests that not being able to change one’s gender marker has a negative impact on access to healthcare and mental health and wellbeing. The study further showed that one in four transgender people in Botswana (25%) had been denied access to healthcare. This is, at least in part, linked to not being able to change one’s gender marker in the identity documents, and thus not having an identity document that matches one’s gender identity and gender expression.

In its Assessment of Legal and Regulatory Framework for HIV, AIDS and Tuberculosis, the Health Ministry noted that “transgender persons in Botswana are unable to access identity documents that reflect their gender identity, which is a barrier to health services, including in the context of HIV. In one documented case, a transwoman’s identity card did not reflect her gender identity- her identity card photo indicated she was ‘male’. When she presented her identity card at a health facility, a health worker called the police who took her into custody.”

The necessity of a correct national identity document goes beyond healthcare. The High Court of Botswana explains that “the national identity document plays a pivotal role in every Motswana’s daily life, as it links him or her with any service they require from various institutions. Most activities in the country require every Motswana to produce their identity document, for identification purposes of receiving services.”

According to the Legal Gender Recognition in Botswana report, this effectively means that transgender, whose gender identity and expression is likely to be different from the sex assigned to them at birth and from what is recorded on their identity document, cannot access services without risk of denial or discrimination, or accusations of fraud.

In this context, gays and lesbians advocacy group LEGABIBO has called on government through the Department of Civil and National Registration to urgently implement the High Court rulings on gender marker changes. As stated by the High Court in the ND vs Attorney General of Botswana judgement, identity cards (Omang) play an important role in the life of every Motswana. Refusal and or delay to issue a Motswana with an Omang is denying them to live a complete and full-filing life with dignity and violates their privacy and freedom of expression.

The judgement clarified that persons can change their gender marker as per the National Registrations Act, so changing the gender marker is legally possible. There is no need for a court order. It further said the person’s gender is self-identified, there is no need to consult medical doctors.

LEGABIBO also called on government to develop regulations that specify administrative procedure to change one’s gender marker, and observing self-determination process. Further, the group looks out for government to ensure members of the transgender community are engaged in the development of regulations.

“We call on this Department of Civil and National Registration to ensure that the gender marker change under the National Registration Act is aligned to the Births and Deaths Registry Act to avoid court order.

Meanwhile, a gay man in Lobatse, Moabi Mokenke was recently viciously killed after being sexually violated in the streets of Peleng, shockingly by his neighbourhood folks. The youthful lad, likely to be 29-years old, met his fate on his way home, from the wearisome Di a Bowa taverns situated in the much populated township of Peleng Central.

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