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‘ZCC constitution is a fraud’

Following an application by some Zion Christian Church (ZCC) members in Botswana challenging the church’s disregard and violation of its own constitution, another member who sits on the church’s lawyers’ panel launched a fresh application this week challenging that the 2009 Botswana constitution is fraudulent.

“The applicants have instituted legal proceedings against ZCC relying on the 2009 constitution that is not operational or not in use and as such the said constitution does not govern the affairs of ZCC in Botswana. I will further pray for the Honourable court to declare the said constitution null and void and of no force and effect,” Jost Sinvula Isaac who is a member and lawyer of ZCC declared in court papers the Weekend Post is in possession of.

Prior, 11 members of the church being Tshiamo Tladi, Khumo Gaorengwe, Mogomotsi Bogosi, Stanley Lejone, Daniel Mathibe, Lesetse Othamo, Mmusi Moeng, Mmatli Lopale, Lebogang Bose, Faneck Bareki and Tony Joseph last week dragged the church together with its Bishop Dr. Barnabas Edward Lekganyane to court saying the ZCC local branch is flouting on its constitution of 2009 – which is currently the subject of the “storm”.

Isaac, who sits in the ZCC attorneys’ panel instituted a fresh application this week as a member of the church and argued that the submission of the 2009 constitution by ZCC to the Registrar of Societies was not necessary as the church had a South African church constitution that was in use since 1994.

He said: “it is my humble submission that the 1994 constitution is the lawful and operational constitution of the ZCC church in Botswana as it has never been repealed or invalidated by any lawful process.”

Accordingly, he emphasized that the “2009 Botswana constitution is illegal, unlawful and a nullity in law and of no force and effect”.

When supporting his arguments the lawyer said there are new facts which he intends to bring before court, which have not been brought forth by any of the parties in the 11 members versus ZCC, Bishop Lekganyane, pending before the court. He added that he discovered the facts after thorough research, making inquiries and perusing the church file at the Registrar of Societies.  

Sometimes in the early 1990’s, he explained, the church applied for registration of its constitution and “exemption” from registration under the Societies Act. The exemption was then approved and they were issued with an exemption certificate. In applying for exemption, he said the church filed its constitution from South Africa, which was received by the Registrar of Societies on the 5th July 1994.

“The church was thus confirmed as a society exempted from registration in terms of the Act and that it was headquartered and controlled outside the country (South Africa), with a universal constitution that applied to all its members and was registered accordingly.”

A perusal of the church file at the Registrar of Societies’ office reveals that sometimes there was a misconception on the part of officials of the church as to its registration status in Botswana.

Indications are that at some stage the church engaged the Office of the President (OP) to have the church exempted from registration, when in fact the church was ‘already’ exempted from registration.

Therefore, the ZCC member stated further that it seems that the confusion that resulted in the registration of the 2009 constitution began with a public announcement that was made by the Registrar of Societies in 2008.

In terms of that notice, all churches which were registered using the constitutions of their ‘mother churches based outside the country’ were now required to file ‘local’ constitutions and a deadline was set for that purpose.

“This request was not made in terms of any provisions of the Societies Act. I must add that this public announcement was not addressed to the ZCC. While the legal propriety of this notice was itself questionable, it was nonetheless not necessary for the church to concern itself with the notice as it was an exempted society which had a constitution in place.”

Other churches that are exempted such as the Roman Catholic Church did not concern themselves with the notice and they did not file local constitutions.

In the end, the ZCC lawyer said a local constitution was developed and on June 2009, the 2009 constitution was submitted to the Registrar of Societies.

He pointed out that the registration status of the church is a matter that has not been ventilated at all by all the parties to the main application (11 ZCC members) “yet it is at the centre of the controversy in these proceedings”.   

According to Isaac, “when this 2009 constitution was submitted, what was overlooked is the fact that the church had a constitution that was in use and further that it was exempted from registration, and that under no circumstances could the church be required to submit local constitution.”

He added that the filing of the 2009 constitution therefore would have resulted in the Exemption of the church being rescinded or cancelled since the preamble of the said constitution states that the church is constituted in terms of Section 5 of the Societies Act.

“When the 2009 constitution was filed with the Registrar of Societies, the church awaited response from the Registrar’s office in relation to the registration of such constitution but to date there is no such response and my understanding is that in the absence of any meaningful response the said constitution was never formally registered for it to be effective.”

The ZCC member also expressed that he is greatly aggrieved by the 2009 constitution because it creates a different ZCC than the church itself. “The church will effectively have two parallel seemingly distinct constitutions since the 2009 constitution did not repeal the 1994 constitution nor was it registered.”

The constitution does not make any reference to the status of the church as an exempted society, suggesting that it was submitted under a misapprehension of facts as to the registration status of the church, he highlighted.

In the 2009 constitution, it is stated that: “the headquarters of the church is said to be Lot 20462, Gaborone. This has never been the headquarters of the church. To the best of my knowledge, the headquarters of the church is Zion city Moria in Limpopo Province of South Africa,” the lawyer clarified.

The Executive Council is entrusted with powers that have hitherto been the preserve of the Church Council, and the 2009 constitution as it is if adopted will hinder the smooth running of the church in Botswana, he highlighted.  

“I therefore intend to raise arguments questioning the validity of this 2009 constitution. The proceedings will have to involve the Registrar of Societies, through the Attorney General.”

“I have raised these issues with the church. In particular I have raised the issue of invalidity of the 2009 constitution with the General Secretary of the church as well as lawyers panel of the church,” he added.

However, Isaac said his pleas for the church to raise these issues have not been headed to. “I understand this to be because the members of the lawyers’ panel directly responsible for this case hold views that are different from mine,” he stated. “To my understanding the church has therefore not been advised to raise these issues in the manner I seek to raise them. I respect this divergent of views, and now ask this court to give me a hearing.”

“As a member of the church, which is a very big international church, and further as an official of the church where the applicants (11 members) in the main action worship, I have an interest in ensuring that the church is governed properly and I consider the raising of these issues to be my responsibility and duty.”

Going forward, he observed that a decision on this matter will also clear any confusion to the registration status of ZCC, the constitution that is in use and the responsibilities of the church in terms of the Societies Act.   

Isaac’s new application citing the Botswana church constitution as “a fraud” will be argued still before Justice Michael Mothobi on 19th August 2016 and it will determine whether the previous matter on violation of the local church constitution falls off or not.

In the 11 members’ case, ZCC was represented by Advocates Soraya Skhassim (SC) and Lenette Pillay from South Africa and Uyapo Ndadi of Ndadi Law Firm in Botswana sat in for the aggrieved 11 ZCC members while in the fresh application due in August, attorney Jost Sinvula Isaac represented himself.

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GCC expensive taste reaches courts

9th March 2021

There is uproar and confusion at Gaborone City Council (GCC) caused by the municipality’s decision to reject cheaper bids and instead award a contract of Asphalt overlay, resealing and road marking works of 10km in Gaborone to a more expensive contractor.

The tender was posted on December 8th last year with TRI VENTURES (PTY) LTD awarded the tender after being the best evaluated bidder. The company, to do the job, quoted P14 707 454.78 as the total bid price and P12 501 336.56 as the total contract price of the award.

The awarding of the job to this company has rubbed other bidders the wrong way and even suspecting the tender adjudicating body of having hidden interests. The arguments from the tenderpreneurs is that the common methodology for awarding the jobs is always hinged on the least expensive taking the job. This, they support further by saying the government has been decrying lack of funds but GCC continues to splash the funds without being logical and prudent.

From the tendering companies, a number of them were below TRI VENTURES’ quote. Trench Plant Hire quoted P12 million, with Costain Services praying for P13 million, Conconet PTY LTD asked for P12,9 million and Clanfield PTY LTD also quoted P12.9 million for the 10 km job in the capital city.

The latter, Clanfield PTY LTD which according to CIPA records is owned by Tlholego Ntebele, approached High Court this week Thursday seeking interdict which will pave way for the review of the tender. The company had initially filed an appeal and the Appeals Board dismissed it.

“In this regard you are hereby informed that, if you are aggrieved by the decision by the Appeals Board you may seek remedy from the high court in accordance with section 24(6) of the LAPAD act,” appeal dismissal letter read. The Appeals Board’s main contention was that the company quoted the money which is lower than the council minimum cut off point of P14 511 798 76.

In their heads of argument at the court, the company through their attorneys argued that by being inexpensive, it was enough to grant them the job. In fact they argued that the winning bid of TRI VENTURE owned by Lebogang Dikole reached the GCC budget ceiling and therefore Clanfield Pty Ltd were the best placed to be awarded.

The request for the interdict was nonetheless dismissed by Justice Radijeng but the company is still adamant that they will appeal. Delivering the speech on Legal year, Chief Justice Terrence Rannowane implored the courts to adjudicate on urgency basis matters of tenders as they stall progress on national developments.

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New infrastructure funding models for Africa

9th March 2021
New-infrastructure

The African Continental Free Trade Area (ACFTA), which came into effect at the beginning of 2021 with a market of 1.2 billion and combined GDP of $3 trillion, could contribute $76 billion to the world economy, according to World Bank.

To harness this potential, African countries would have to address the infrastructural challenge — which means dishing out or augmenting existing infrastructure funding models in favour of new funding models. ACFTA — the biggest trade agreement since World Trade Organization — fundamentally seeks to scrap out tariffs in 90 percent of goods, subsequently improving trade by at least 15 percent by 2024.

However, trade between African countries will most likely to be hampered by lack of adequate infrastructure key in facilitating business. Africa, particularly the Sub-Saharan region has been grappling with the question of funding its infrastructure, and lags behind other regions in the world in meeting infrastructural needs.

As highlighted by African Development Bank in its 2018 economic outlook, one of the key factors retarding industrialization has been the insufficient stock of productive infrastructure in power, water, and transport services that would allow firms to thrive in industries with strong comparative advantages.

The continent’s infrastructure needs an amount of $130–170 billion a year, with a financing gap in the range $68–$108 billion, according to African Development Bank.  Africa’s infrastructure deficiency is well-documented, and has been subject of interrogation by development partners for decades.

The Africa Infrastructure Country Diagnostic, produced by World Bank in 2010, collected comprehensive data on the infrastructure sectors in Africa—covering power, transport, irrigation, water and sanitation, and information and communication technology (ICT) as well as providing an integrated analysis of the challenges they face.

While the report noted that infrastructure has been responsible for more than half of Africa’s improving growth performance and has the potential to contribute even more in the future, it also discovered that Africa’s infrastructure networks increasingly lags behind those of other developing countries and are characterized by missing regional links and stagnant household access.

These deficiencies, cause African firms to suffer production costs, therefore making goods not only expensive but also lowering competition in the economy to the consumer’s disadvantage. African countries continues to fare badly in the annual Global Competitiveness Report — published by World Economic Forum — in the infrastructure pillar, with only South Africa being an exception in Sub-Saharan Africa, though still having power problems.

The infrastructure pillar looks at the quality and extension of transport infrastructure (road, rail, water and air) and utility infrastructure. This is so because better-connected geographic areas have generally been more prosperous and well-developed infrastructure lowers transportation and transaction costs, and facilitates the movement of goods and people and the transfer of information within a country and across borders.

It also ensures access to power and water—both necessary conditions for modern economic activity. Power is listed among Africa’s biggest infrastructure challenge, with 30 countries facing regular power shortages and many paying high premiums for emergency power, according to World Bank which indicated that to address Africa’s infrastructure needs it will cost around $93 billion a year, but African Development Bank puts the figure at $130–170 billion a year, after its recent study.

The infrastructure challenge cut across all countries, from fragile economies to resource-rich countries such as Botswana mainly because a large share of Africa’s infrastructure is domestically financed, with the central government budget being the main driver of infrastructure investment.

In 2017, Head of South African Development Community (SADC) Public Private Partnership (PPP) Network, Kogan Pillay warned that Africa will go into recession in the next 10 years if the continent does not adequately invest in its infrastructural needs.

Pillay, who has vast experience in the implementation of PPPs and has previously worked for the South African government, is of the view that Africa’s big investors will shun the continent because of lack of infrastructure necessary for doing business.

“World Bank has warned about this happening,” he said at a workshop organised by Ministry of Finance in Botswana. “Africa would not attract FDI (Foreign Direct Investment) because nobody would want to do business in a country which does not have infrastructure. It makes doing business difficult,” Pillay stated.

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Russian billionaire takes centre stage in Masisi, Geingob P3billion project

9th March 2021

President Dr Mokgweetsi Masisi could find himself ensnared in controversy, as contentious Russian billionaire, Rashid Sardarov this week emerged as the likely investor in the water desalination worth approximately P3 billion.

News of a possible water desalination project resurfaced after President Mokgweetsi Masisi made his second State visit to Namibian counterpart President Hage Geingob in a space of less than a month.  President Masisi and his entourage travelled to Namibia to explore the possibility of collaborating on a water project, according to government officials.

Reports in Namibia indicate that talks are already underway with Geingob and an investor who is offering desalination water from the Atlantic Ocean.  “Being a good neighbour and alive to Botswana’s water challenges, Geingob invited him to come and meet the investor to share thoughts on the project”, Masisi announced on his official social media pages.

“We are happy with the prospects because we need the water. However, our ministers and technocrats have to determine what is best for us bearing in mind our governance procedures,” Masisi wrote. Tautona Times, an Office of the President (OP) publication, reports that funds and other technical considerations permitting Botswana to partner with Namibia in a water desalination project which could address the current water shortages that the two countries are facing are being sourced.

Namibia has been working on a project to treat water from the Atlantic Ocean and use it for drinking purposes. Last Thursday, an investor willing to embark on the project made a presentation on the prospects of this mega project to the two Heads of State and their Ministers and officials in Windhoek. The project is expected to take five years to complete.

Botswana however is still part of Botswana- Lesotho water transfer project. The L-BWT scheme will supply water to Botswana, Lesotho and South Africa from the Makhaleng Dam – part of the Lesotho Lowlands Water Supply Scheme – through a 700 km water conveyance pipeline from Lesotho, through South Africa, to Botswana.

In August 2018, Botswana was tasked with an investment request of €3.42 million grant funding for outstanding feasibility studies related to the dam and conveyancing pipeline. “We are still part of the Lesotho- Botswana water transfer project where Botswana was tasked by the three countries to approach the African Development Bank to fund the feasibility study which they did and it’s been done. The technical team for the three countries even toured the pipeline site to determine what’s on the way which may require moving”, said impeccable sources.

After the trip, Tautona Times reported that an investor who was willing to embark on the project made a presentation on the prospects of this mega project to the two Presidents and their Ministers and officials in Windhoek. The project is expected to take five years to complete. The said investor is Rashid Sardarov, according to the Namibian press.

The International Consortium of Investigative Journalist (ICIJ) Panama Papers have linked Russian billionaire and Namibian land baron, Rashid Sardarov, to a number of unscrupulous offshore companies. Sardarov, who is believed to be a person of interest between the two Heads of State, owns large tracts of land in Namibia, and is a long-term client of Mossack Fonseca, the law firm at the centre of the Panama Papers data leak, which was obtained by German newspaper Süddeutsche Zeitung and the International Consortium of Investigative Journalists.

ICIJ reports that absentee landlord Sardarov is a 60-year-old flamboyant Russian oligarch with an interest in energy businesses, property, aviation, hospitality and wildlife hunting.  In 2013 he bought several farms in Namibia, measuring 28,000 hectares (the equivalent of about 34,000 football fields), through his Switzerland-based company, Comsar Properties SA. Sardarov also apparently intends to build a game ranch 70 km outside Namibia’s capital city of Windhoek.

One of the main purposes of creating an offshore company is to hide the names of the real owners. Even though creating these kind of companies is not illegal, the Panama Papers once again showed that some of these shell companies, masked in secrecy provide cover for dictators, politicians and tax evaders.

Rashid Sardarov is unapologetic about his riches, and was quoted by the Centre for Investigative Reporting in Sarajevo as saying: “I’ve been a billionaire for years, and I’m not ashamed to say so”. He received Bosnian citizenship in 2011 because he was a major investor there.

In addition to his 2013 land purchases in Namibia, at the end of 2014, Sardarov wanted to buy an additional 18,000 hectares of land for expansion. It is not yet clear whether Sardarov acquired the extra land he wanted. But he is building a state-of-the-art game ranch, Marula Game Lodge, in the region.

Botswana and Namibia recently signed a Bi- National Commission and the two Heads of State emphasized the unique responsibility they have to their nations. They agreed to constantly engage each other in communication and other ventures that will yield benefits to the people of the two countries. President Masisi and Geingob acknowledged the common challenges that Botswana and Namibia have adding that the time for working in silos is over.

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