More than twenty Botswana citizens who were active in the struggle for liberation against apartheid have dragged the South African government to court in a class action that seeks to overturn the decision by the Special Pension Administration to reject their applications for special pension, amid allegations of fraud, corruption and maladministration of the multibillion Rand Special Pension fund.â€¨â€¨
Cited as respondents before the North Gauteng High Court in Pretoria are; the National Treasury, Minister of Finance Nhlanhla Nene, Special Pensions Appeal Board and the Government Pensions Administration. The Applicants accuse the Administration of administrative bungling, incompetence and conflict of interest.
They will argue that one senior staff member of the National Treasury's special pensions is not a fit and proper person to hold his current position because of his criminal record, after being found guilty of statutory corruption for stealing by servant under the prevention of corruption act and parole infringement.
He reportedly bought a R4 million house while working for the fund under mysterious circumstances even though he does not have the means to do so.â€¨â€¨Court papers indicate litigants will further argue that Jonathan suffers from conflict of interest because he worked for VENDZULU – a consultancy firm that was previously engaged by the Administration for capacity building.
A confidential report prepared by a task force to sniff out rampant looting and maladministration of the fund reported that a consultancy employ(ed) their own staff under the Special Pensions programme, yet their personnel was paid separately by the Special Pensions, resulting in massive financial gain to the consultancy.
The consulting group also reportedly advertised a critical post, staffed it with unqualified personnel of their choice and trained these employees afterwards to fit the profile of the posts. The finding appears to refer to Jonathan as well because even though he did not meet the specified requirements for the position, he was recruited by the consulting group and later taken for short training tailor made to meet the job profile and competencies for the job.
Millions of Rands have reportedly been looted through massive fraud using ghost beneficiaries and stealing from deserving cases by the staff of the Administration. Batswana applicants who clearly met the requirement for pension suspect they are likely to have been defrauded in the same manner after their applications were approved but the money later diverted.
â€¨â€¨The Applicants, represented by the Legal Resources Centre, are challenging both the decision of the Special Pension Administration and the Special Pension Appeals Board to reject their applications on the basis amongst others, that their applications were submitted late after the cut-off date of 31 December 2006, failed to provide proof of full time service and further that they should also apply to the Department of Home Affairs to determine their eligibility for South African citizenship. â€¨â€¨
The Applicants argue to the contrary that the grounds advanced by the administration and the board were fatally flawed, spurious, arbitrary, capricious and failed to take into account relevant factors nor were they rationally connected to the information before the court or the reasons given and therefore were unreasonable because no reasonable person could have arrived at such a decision. â€¨â€¨
They accuse the Administration of administrative bungling because the reasons to provide full time service are not the true reasons for rejecting their applications and neither were their applications submitted late.
To the contrary, the adjudicators who considered their applications had in fact conceded that there were in full time service and they met the requirement for eligibility for South African citizenship because they were either South African by birth and descent or at one time held South African citizenship.
They want the court to review and set aside the decision not to award them Special Pension as it unfairly dismisses their contribution to the struggle for the liberation of South Africa. The Pensions appeals board’s decision to dismiss the application of the applicants also affects many other citizens of Botswana and Namibia.â€¨â€¨
They applied for Special Pension in 2006 but their applications were either lost or misplaced by staff at the South African High Commission in Gaborone.
This has been confirmed in an affidavit by the former First Secretary of the Commission Nathaniel Serache who in an affidavit before the court stated that "unfortunately the forms were misplaced by members of staff at the South African Commission in Gaborone where I served as First Secretary while preparing the office where the forms were kept for a new staff member to occupy the office", he further confirmed that the Applicants indeed filled out the Special Pension applications forms that went missing.â€¨â€¨
While their applications were rejected inter-alia on the grounds that they had not approached the Department of Home Affairs to determine their eligibility for South African citizenship, the applicants dismiss the contention as flawed and baseless because "other Botswana citizens have had their special pension paid, without requiring material proof of their citizenship, and without the requirement of completing the determination of citizenship status."
These include among others, Mrs GMJ Mokgosi of Pitsane in Barolong Farms, David Modikwagae Aphiri of Mochudi, Michael Kitso Dingake of Bobonong, Fish Keitseng of Kanye, and Motsamai Mpho of Maun. However, the applications of many other equally deserving applicants either bona fide SA citizens or those eligible for South African citizenship and with an impeccable track record of having been at the fore-front of the liberation struggle such as that of Frank Ikaneng Modise who was exiled in the UK were rejected.
â€¨â€¨This is despite the fact that Frank Modise together with Fish Keitseng were MK veterans and together hosted Nelson Mandela in Lobatse in 1962. Modise was co-founder and organizer of the then United Tobacco Workers Union, a former affiliate of COSATU.
He was engaged in full time service for the ANC, played a major role in the Zeerust uprising of the 1950s, coordinated its legal defence and conducted underground operations in support of the detainees of the Zeerust uprisings at the courts in Zeerust, Rustenburg and Pretoria.
He was detained and tortured on many occasions by the apartheid police before fleeing via Botswana to the UK where he continued be central in arranging humanitarian, financial, logistical, and educational opportunities for many South African refugees and the ANC. Modise later passed on in London as a result of complications consistent with the injuries he sustained due to torture at the hands of the apartheid police. â€¨â€¨
By contrast, Mrs Mokgodi was awarded a service period of 25 years after the Special Pension Administration accepted and was convinced that she was engaged full time in the service of a political organization in terms of Section 1 of the Special Pension Act 69 of 1996.
The Applicants on the other hand maintain they have locus standi to bring the matter before the court because they have exhausted all local remedies and it has become apparent that there is no other reasonable and effective manner in which the challenge can be made particularly since the applicants have tried various political means to obtain clarity as to the procedural fairness, lawfulness and reasonableness of the DHA decision.â€¨â€¨
The Applicants hope the court will make an order equally applicable to other applicants in a similar position and other potential applicants who might not be part of the court process in the public interest so that their contribution to the struggle is not denied and trampled upon through unlawful administrative action.
They also want the Administration’s decision that Batswana and Namibian Applicants should submit a determination of citizenship to the Department of Home Affairs before the Board could consider their appeals to be reviewed and set aside and declared unlawful.â€¨â€¨According to them, the delay in bringing the case before the court is an indication of how difficult it can be to challenge the Administration's decision for rejecting their applications for Special Pension.
Most of the applicants do not have the financial means to obtain legal representation since alternative amicable settlements have failed. The court process therefore provided that the only opportunity to challenge the administration’s decision of the Board was by providing evidence in court.
“Other special pension applicants have not had that opportunity and some have passed away and their dependents may not be able to act on their behalf,” they maintain. They fought against apartheid and made real sacrifices towards achievement of South Africa's democracy by risking their personal safety in order to further the cause of freedom and equality in South Africa.â€¨â€¨
In 2011, Finance Minister Nene was forced to retract his statement following public outcry after he lied to the Parliament standing committee on finance claiming "considerable progress" and that the special pension unit had drastically reduced the backlog for pension applications citing misleading and inflated numbers.
Parliament was informed by Jonathan of many cases of fraud and corruption in the form of fake biographies which were referred to the Special Investment stagnation Unit and the Hawks. â€¨â€¨A special task force investigation corruption revealed how virtually the whole Bizana community, in the Eastern Cape were defrauded and denied the opportunity to apply for pensions by a syndicate made up of Administration officials who used extortion, selling application forms at R500 each.
The Administration failed to take action against officials involved claiming the syndicate did not defraud the state but applicants despite operating as representatives of the fund. The task force opined that fraudulent activities continued unabated among the Administration personnel but no measures were taken to address the problem.
The Administration officials reportedly frustrated the Hawks investigations by refusing to produce all relevant documents. The criminal syndicate of the administration officials was able to produce fake ID documents, birth certificates, death certificates, marriage certificates and using false bank accounts. At least R1 million was intercepted by the task force before it was transferred into a bank account by the syndicate.
For so many years, Botswana has been trying to be a self-sufficient country that is able to provide its citizens with locally produced food products. Through appropriate collaborations with parastatals such as CEDA, ISPAAD and LEA, government introduced initiatives such as the Horticulture Impact Accelerator Subsidy-IAS and other funding facilities to facilitate horticultural farmers to increase production levels.
Now that COVID-19 took over and disrupted the food value chain across all economies, Botswana government introduced these initiatives to reduce the import bill by enhancing local market and relieve horticultural farmers from loses or impacts associated with the pandemic.
In more concerted efforts to curb these food crises in the country, government extended the ploughing period for the Southern part of Botswana. The extension was due to the late start of rains in the Southern part of the country.
Last week the Ministry of Agriculture extended the ploughing period for the Northern part of the country, mainly because of rains recently experienced in the country. With these decisions taken urgently, government optimizes food security and reliance on local food production.
When pigs fly, Botswana will be able to produce food to feed its people. This is evident by the numbers released by Statistics Botswana on imports recorded in November 2020, on their International Merchandise Trade Statistics for the month under review.
The numbers say Botswana continues to import most of its food from neighbouring South Africa. Not only that, Batswana relies on South Africa to have something to smoke, to drink and even use as machinery.
According to data from Statistics Botswana, the country’s total imports amounted to P6.881 Million. Diamonds contributed to the total imports at 33%, which is equivalent to P2.3 Million. This was followed by food, beverages and tobacco, machinery and electrical equipment which stood at P912 Million and P790 Million respectively.
Most of these commodities were imported from The Southern African Customs Union (SACU). The Union supplied Botswana with imports valued at over P4.8 Million of Botswana’s imports for the month under review (November 2020). The top most imported commodity group from SACU region was food, beverages and tobacco, with a contribution of P864 Million, which is likely to be around 18.1% of the total imports from the region.
Diamonds and fuel, according to these statistics, contributed 16.0%, or P766 Million and 13.5% or P645 Million respectively. Botswana also showed a strong and desperate reliance on neighbouring South Africa for important commodities. Even though the borders between the two countries in order to curb the spread of the COVID-19 virus, government took a decision to open border gates for essential services which included the transportation of commodities such as food.
Imports from South Africa recorded in November 2020 stood at P4.615 Million, which accounted for 67.1% of total imports during the month under review. Still from that country, Botswana bought food, beverages and tobacco worth P844 Million (18.3%), diamonds, machinery and fuel worth P758 Million, P601 Million and P562 Million respectively.
Botswana also imported chemicals and rubber products that made a contribution of 11.7% (P542.2 Million) to total imports from South Africa during the month under review, (November 2020).
The European Union also came to Botswana’s rescue in the previous year. Botswana received imports worth P698.3 Million from the EU, accounting for 10.1% of the total imports during the same month. The major group commodity imported from the EU was diamonds, accounting for 86.9% (P606.6 Million), of imports from the Union. Belgium was the major source of imports from the EU, at 8.9% (P609.1 Million) of total imports during the period under review.
Meanwhile, Minister of Finance and Economic Development Thapelo Matsheka says an improvement in exports and commodity prices will drive growth in Sub-Saharan Africa. Growth in the region is anticipated to recover modestly to 3.2% in 2021. Matsheka said this when delivering the Annual Budget Speech virtually in Gaborone on the 1st of February 2021.
He said implementation of the African Continental Free Trade Area Agreement (AfCFTA), which became operational in January 2021, could reduce the region’s vulnerability to global disruptions, as well as deepen trade and economic integration.
“This could also help boost competition and productivity. Successful implementation of AfCFTA will, of necessity, require Member States to eliminate both tariffs and non-tariff barriers, and generally make it easier to do business and invest across borders.”
Matsheka, who is also a Member of Parliament for Lobatse, an ailing town which houses the struggling biggest meat processing company in the country- Botswana Meat Commission, (BMC), said the Southern African Customs Union (SACU) recognizes the need to prioritize the key processes required for the implementation of the AfCFTA.
“The revised SACU Tariff Offer, which comprises 5,988 product lines with agreed Rules of Origin, representing 77% of the SACU Tariff Book, was submitted to the African Union Commission (AUC) in November 2020. The government is in the process of evaluating the tariff offers of other AfCFTA members prior to ratification, following which Botswana’s participation in AfCFTA will come to effect.”
Women continue to shadow men in politics – stereotypes such as ‘behind every successful man there is a woman’ cast the notion that women cannot lead. The 2019 general election recorded one of Botswana’s worst performances when it comes to women participation in parliamentary democracy with only three women elected to parliament.
Botswana’s former Minister of Health, Professor Sheila Tlou who is currently the Co-Chair, Global HIV Prevention Coalition & Nursing Now and an HIV, Gender & Human Rights Activist is not amused by the status quo. Tlou attributes this dilemma facing women to a number of factors, which she is convinced influence the voting patterns of Batswana when it comes to women politicians.
Professor Tlou plugs the party level voting systems as the first hindrance that blocks women from ascending to power. According to the former Minister of Health, there is inadequate amount of professionalism due to corrupt internal party structures affecting the voters roll and ultimately leading to voter apathy for those who end up struck off the voters rolls under dubious circumstances.
Tlou also stated that women’s campaigns are often clean; whilst men put to play the ‘politics is dirty metaphor using financial muscle to buy voters into voting for them without taking into consideration their abilities and credibility. The biggest hurdle according to Tlou is the fallacy that ‘Women cannot lead’, which is also perpetuated by other women who discourage people from voting for women.
There are numerous factors put on the table when scrutinizing a woman, she can be either too old, or too young, or her marital status can be used against her. An unmarried woman is labelled as a failure and questioned on how she intends on being a leader when she failed to have a home. The list is endless including slut shaming women who have either been through a divorce or on to their second marriages, Tlou observed.
The only way that voters can be emancipated from this mentality according to Tlou is through a robust voter education campaign tailor made to run continuously and not be left to the eve of elections as it is usually done. She further stated that the current crop of women in parliament must show case their abilities and magnify them – this will help make it clear that they too are worthy of votes.
And to women intending to run for office, Tlou encouraged them not to wait for the eleventh hour to show their interest and rather start in community mobilisation projects as early as possible so that the constituents can get to know them and their abilities prior to the election date.
Youthful Botswana National Front (BNF) leader and feminist, Resego Kgosidintsi blames women’s mentality towards one another which emanates from the fact that women have been socialised from a tender age that they cannot be leaders hence they find it difficult to vote for each other.
Kgosidintsi further states that, “Women do not have enough economic resources to stage effective campaigns. They are deemed as the natural care givers and would rather divert their funds towards raising children and building homes over buying campaign materials.”
Meanwhile, Vice President of the Alliance for Progressives (AP), Wynter Mmolotsi agrees that women’s participation in politics in Botswana remains a challenge. To address this Mmolotsi suggested that there should be constituencies reserved for women candidates only so that the outcome regardless of the party should deliver a woman Member of Parliament.
Mmolotsi further suggested that Botswana should ditch the First Past the Post system of election and opt for the proportional representation where contesting parties will dutifully list able women as their representatives in parliament.
On why women do not get elected, Mmolotsi explained that he had heard first hand from voters that they are reluctant to vote for women since they have limited access to them once they have won; unlike their male counterparts who have proven to be available night or day.
The pre-historic awarding of gender roles relegating women to be pregnant and barefoot at home and the man to be out there fending for the family has disadvantaged women in political and other professional careers.
Special Economic Zone Authority’s (SEZA) P126 million Master Planning of Pandamatenga Special Economic Zones Business Case, Urban & Landscapes tender is in court after one of bidders, Moralo Design challenged its disqualification from the tender.
SEZA is transforming Pandamatenga into an Agropolis which will combine modern farming with top notch industrial, residential, commercial and recreational land use. The project is measured at 137, 007 ha which comprises of 84, 500 ha for commercial production, 12 400 ha for the subsistence production, 107 ha will be for Agro-processing while 40 000 ha will be for the Zambezi Integrated Agro-commercial Project (ZIACDP).
In their court papers, Moralo Designs, represented by Jones Moitshepi Firm, said they received a letter from SEZA on or around the 12th November 2020 notifying that their bid has been disqualified at the technical evaluation stage of the tender adjudication process.
In their response, Lonely Mogara who is Chief Executive Office of SEZA said Moralo Designs is not entitled to be heard by the court as the company never participated in the disputed tender hence SEZA knows the bidder as Moralo Design Consortium.
“Moralo Designs had failed to establish any right to be heard by the court. The fact that they had submitted a tender was not guarantee that they would be awarded the tender,” he said. “The reasons for the disqualification of Moralo Design Consortium’s bid were valid and justified because their bid was insufficient as it lacked vital information as required by the terms of reference.”
SEZA Chief said the requirements for the work plan and project programme were clearly stated in the Invitation To Tender (ITT). Moralo Design Consortium was not penalised for non-existent requirements. In disqualifying the bid by Moralo Designs Consortium, Mogara further indicated that SEZA considered that there was a requirement for a programme and work plan.
“The purported “project programme” that was submitted by Moralo Design Consortium failed to depict the activity durations, activity phasing and interrelations, milestones, delivery dates of reports and logical sequence of activities constituent with methodology and showing a clear understanding of the terms of reference,” said Mogara in responding affidavit.
He said the ITT required that there be provision of delivery dates within the programme hence Moralo Designs Consortium failed to consult with SEZA when they felt that such a requirement would be impossible to provide. He continued to say there was an avenue available when the tender was being prepared, but they failed to use it.
“Moralo Designs’ application for interim relief lacks merit and only seeks to delay SEZA from completing the evaluation and award of a tender that will serve the greater good of the nation,” said Mogara.
He went on to say Moralo Designs has no prospects of succeeding in its review application as the possibility of court granting the review are so remote in that the court does not possess the requisite technical knowhow on what constitutes an adequate work plan and what ought to be contained in it.
A bidder disqualified for failure to provide adequate information has no right to be protected by the court. Irreparable harm can only be suffered by one who has shown that there exists a right in so far as having stood the chance of being awarded the tender.
The financial benefit likely to be derived by Moralo Designs- which is highly unlikely- is outweighed by the nature of the project. In the unlikely event that the application for review is successful, they can claim for damages. The availability of such remedy weighs in favour of the interdict being refused. The refusal stands to benefit the nation more than the financial interest that Moralo Designs seeks to protect.
Moralo Designs failed to establish the urgency of their application. They waited for more than a month and half after the disqualification to approach the court on urgency. Meanwhile when delivering the State of the Nation Address (SONA) last year, President Mokgweetsi Masisi revealed that the detailed design and construction of 12 steel grain silos — with an overall storage capacity of 60 000 metric tonnes — is underway at the Pandamatenga SEZ and the P126 million project will be completed by August 2021.