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Batswana Sue SA Finance Minister

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.



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.

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.



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. 



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. 



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.



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.



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.



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. 



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.



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.

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.



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. 

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.

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Government ignores nurses’ COVID-19 anxieties

4th August 2021
Nurses

Health workers are at the front line fighting the deadly, contagious COVID-19. These workers have an immense challenge of welfare and government has since turned a blind eye to dares and crushing odds throttling health officers, particularly nurses.

Botswana Nurses Union (BONU) has once more called on government to invest in the country’s nurses and give the nursing profession dignity.

In May 2020, BONU President, Obonolo Rahube said government should, in line with the advocacy of World Health Organisation (WHO) invest more on nurses and midwives, and further advised government to address challenges that nurses are faced with. The proposal was made on International Nurses Day.

At the time, Rahube urged government to provide subsidised accommodation for nurses and midwives as it has emerged that during the fight against the Corona-virus, accommodation for nurses and midwives is very important. Rahube called on government to provide nurses and midwives with 100% medical cover.

He also called on government to introduce risk allowance for nurses and midwives, noting that as frontline workers during the pandemic, they are at high risk. Nurses also demanded Personal Protective Equipment (PPE), a matter which they lost with costs in court. Also critical during the COVID-19 era for health workers, psychological support is what BONU maintains is still lacking.

In the same year (2020), the Union raised a number of other challenges they are being faced with. These challenges, they asserted, make it testing for them to undertake their duties, especially now that COVID-19 has shaken Botswana’s already weak health system.

BONU expressed disappointment at nurses’ pay, nurses who tested positive for COVID-19 at an alarming rate, violence against nurses, nurses’ contracts which were never renewed and a poorly coordinated vaccination plan for health workers.

Clearly, nurses are not only battling the COVID-19 virus, but also government who has since refused to come to the party.

This week once again, BONU tested waters and slammed government with more demands, some of which have turned into an everyday song while COVID-19 continues to kill more nurses.

At a press conference on Tuesday, BONU President Rahube said over 800 nurses have been infected with COVID-19. Of this number, 34 nurses lost their lives due to COVID-19 related infections.

WHO and other health experts say for countries to emerge victorious from the COVID-19 pandemic, they must fast-track the roll out of vaccine. In Botswana, there is no clear explanations of how the vaccination plan is going.

The situation around vaccination is chaotic, and this is evidenced by only 28% of nurses who have been vaccinated. President Mokgweetsi Masisi is also disturbed by the COVAX programme as Botswana vaccines arrive in the country missing, every time.

Debates in Parliament on which vaccine to adopt are failing to conclude, in fact, they never gained energy. Rahube told members of the media that nurses are overworked.

“Shortage of nurses puts those available at risk. Some nurses are on isolation, quarantine and some passed on. Nurses do both testing and contact tracing so they end up working stretched hours, at times from 6am to 10pm. There is no how nurses will be able to deliver while exhausted,” he said.

He further indicated that infection control practitioners are not recognised and deployed appropriately, and some regions have shortage of commodities and supplies such as water resistant gowns (nurses are forced to re-use those availed), masks, gloves, scrubs and uniforms.

Oxygen supply is said to be in shortage, something that mounts COVID-19 deaths.

“Patients lose their lives whilst still awaiting to be put on oxygen. Psychological services are in serious need as nurses continue to lose their significant others, faced with resource constraints and many of them are not vaccinated,” said Rahube.

Accommodation still remains a huge challenge for nurses. BONU President said nurses overcrowd with families and colleagues.

In Kauxwi, four nurses share a single house, in Moshaweng two nurses share a single bedroomed house together with their families, with no electricity yet the village is powered. In Kazungula, there are only two staff houses for 11 nurses and their families.

The union stressed that the Chief Nursing Officer is not coming to the party, and the expectation is that the office should be coordinating all nursing issues at the Health Ministry. Rahube indicated that transfers have been frozen, promotions stalled and they continue to lose nursing posts to other Ministries.

In a number of recommendations, BONU urged government to consider compensation and risk allowance for staff affected by COVID-19 related deaths and those infected. “COVID-19 has been declared an occupational health illness, in essence, the employer should facilitate its occupational health division, and there are lots of occupational health nurses who are wrongly deployed, who could be running such programs at the facilities.”

In regard to vaccinations, BONU underlined that there should be clear information relating to vaccines and they should be made accessible. “Local franchise manufacturing of vaccine could use Botswana Vaccines Institute (BVI) and government should be clear and transparent concerning procurement of vaccines. It should also allow stakeholders with capacities of procuring vaccines to do so.”

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Gov’t reforms public procurement

4th August 2021
-Masisi-Serame

Government is moving swiftly to completely overhaul public procurement — a new Bill has been tabled before Parliament this week by Minister of Finance and Economic Development, Peggy Serame and is scheduled for debate in the coming days of the current parliament sitting. 

Through this Bill the country’s purse bearer seeks to dismantle existing public procurement pieces of legislation, transform, merge and form a new public procurement arrangement. The existing public procurement high command base — the Public Procurement and Asset Disposal Board (PPDB) would cease to exist.

This organisation will transition and assume the reigns of a regulator and oversight authority; the actual procurement; floating of tenders, accepting bids, adjudicating and awarding tenders will be fully taken over by Government departments accounting officers.

Accounting officers are Permanent Secretaries and statutory organisation heads and directors or any person who is responsible for the administration and day-to-day management of the affairs of a procuring entity, and any other person, who may be designated as such by the Minister under the act.

Speaking to this Bill this week, Serame revealed that the current Public Procurement and Asset Disposal arrangement will be merged with the local authority’s procurement Act.

“We will now have procurement under one roof, all overseen by accounting officers, it’s all government money coming from one port,” she said.

Minister Serame explained that PPADB will no longer be player and referee at the same time, with a view to improve efficiency and effectiveness in the regulation and management of public procurement processes.

According to Minister Serame, the new public procurement Act will promote competition among suppliers and contractors, and also provide for the fair, equal and equitable treatment of all suppliers and contractors.

PUBLIC PROCUREMENT REGULATORY AUTHORITY 

Should parliament pass this bill the current Public Procurement and Asset Disposal Board (PPADB) will transition into a new body called Public Procurement Regulatory Authority.

The new Authority will be  mandated with setting standards and practices for the public procurement system, regulate and control the public procurement system, ensure the application of fair, equitable, competitive, transparent, accountable, efficient, non-discriminatory, honest, value for money and public confidence in procurement standards and practices.

Furthermore the Authority will monitor and enforce compliance with the new Act and any relevant law by a procuring entity.

For standardization and  ensuring of world class procurement best practices the Public Procurement Regulatory Authority will  monitor, assess, review and report on the performance of the public procurement system to the Minister and advise on desirable changes, and further issue standardized bidding documents to all procuring entities

This oversight and procurement regulator will conduct periodic inspections of the records and proceedings of a procuring entity to ensure compliance with the Act.

The regulator will institute periodically, in respect of any procurement —a procurement audit during a tender process, a contract audit in the course of execution of an awarded tender, a performance audit after the completion of a contract, and an investigation at any stage of a procurement process.

The Authority will continue to keep and maintain an up-to-date register of contractors, known as the “Contractors’ Register”, in works, services and supplies, or any combination thereof, however classified.

The new Public Procurement Regulatory Authority will be governed by a board of nine (9) non-executive directors appointed by the Minister of Finance and Economic Development.

The Public Procurement Board will be charged with directing the affairs of the Authority. Day to day executive activities of the Public Procurement Authority will be run by a Chief Executive Officer who will be appointed by the Minister on the recommendation of the board.

PROCURING ENTITIES AND ACCOUNTING OFFICERS 

The actual procurement will now be handled by the Accounting Officers who will lead their procuring entities. The entities will consist of the procurement oversight unit, a procurement unit, an ad hoc Evaluation Committee, the user Department; or any other appropriate structure put in place by the Government.

The Accounting Officer will be in charge of establishment of appropriate procurement structures to undertake the procurement functions under the new act, which shall be staffed at an appropriate level in line with the model structure issued by the Public Procurement Regulatory Authority.

The Accounting Officer will also be charged with establishment, as may be prescribed, of a committee within a procuring entity which will oversee procurement activities, establishment, as may be prescribed, of an oversight committee to monitor procurement activities in a procuring entity.

The primary role of the Accounting Officers will be adjudication and award of tenders, including the adjudication of a bid recommendation submitted to him/her through a procurement oversight unit.

The Accounting officer will have powers to cancel a tender process and reject a tender offer at any time prior to entering into a contract, in the manner as may be prescribed, and the Accounting Officer shall not compensate the bidder of a tender that has been cancelled.

Under this proposed Act new set of regulations and guidelines will direct procurement complaints and appeals.

COMPLAINTS & TENDER DISPUTES

A procuring entity  will, after the publication of an award decision — allow a cooling-off period of 10 days in order for the procuring entity to receive and address complaints, if any, from any contractor who is aggrieved by the award decision; and not enter into a contract relating to the award before the expiration of a cooling period.

A contractor who is aggrieved by a breach of any provision of this Act or claims to have suffered or is likely to suffer loss or damages due to a breach of a duty imposed on a procuring entity shall, at the first instance, lodge a complaint before an Accounting Officer for review.

A contractor who lodges a complaint shall have the right to participate in the review proceedings before an Accounting Officer. A contractor who fails to participate in the review proceedings shall be barred from subsequently lodging the same complaint.

Under this proposed Act an Accounting Officer will not entertain a complaint after a contract has entered into force. After considering a complaint and determining that the complaint is a frivolous or vexatious complaint, Accounting Officer shall dismiss such complaint.

Notwithstanding subsection (1), an Accounting Officer may refer a complaint considered and determined to be frivolous or vexatious to the Tribunal for the Tribunal to take any appropriate action as may be prescribed.

An aggrieved person shall submit his or her complaint in writing to an Accounting Officer within 10 days from the date of the publication of an award decision by the Accounting Officer, relating to the complaint.

The Accounting Officer will not entertain a complaint unless it is submitted to him/her within the period referred to under subsection.

A contractor who is aggrieved by a decision of an Accounting Officer may appeal to the Tribunal within 14 days from the date of the decision of the Accounting Officer.

Where a contract has been concluded by a procuring entity, based on an award decision of an Accounting Officer, the contract shall be irrevocable and its execution shall proceed without interruption whether the award decision by the Accounting Officer may in itself remain disputable by a contractor through the Tribunal.

Notwithstanding subsection (5), the Tribunal may suspend and subsequently revoke or terminate the execution of a contract if in the opinion of the Tribunal, sufficient evidence has been adduced to demonstrate that the execution of the contract may cause substantial loss to the public revenue or prejudicially affect public interest.

A complainant who wishes to lodge a complaint shall exhaust the dispute resolution processes provided in this Act before the complainant refers the complaint to a court.

PUBLIC PROCUREMENT TRIBUNAL 

The Tribunal will be a body established independently from Public Procurement Regulatory Authority, and shall constitute retired High Court judges or practicing attorneys who qualify to appoint high court judge.

The Tribunal shall adjudicate over any matter brought before it by a complainant for a breach of any of the provisions of this Act, or any appeal brought in accordance with the provisions of this Act.

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COVID-19 hits hard on BITC

4th August 2021
BITC

The COVID-19 pandemic which weakened world economies had left a devastating impact on Botswana Investment and Trade Centre (BITC) existence in 2020. According to the group’s 2019/2020 Annual Report, Foreign Direct Investment (FDI) was sluggish for the first two quarters at P126 million and P426.96 million respectively. They then took an upward trajectory in Q3 and 4 at P1396 million and P1456 million respectively.

The year closed with a reduced performance at 73% for Q4. According to the financial report, export earnings opened the year at 83% which is approximately P671 million, before dropping to 81% (P1299.55 million). However, Quarter 3 experienced a slight rise in performance to 82%, or P1978.42 million before a drop in performance to close Quarter 4 at P74.9%, which was P2403.91 million.

Even if that is the case, the Centre continued to promote local investors by facilitating for local entrepreneurs to produce and find markets for their products both locally and internationally. The trend for Domestic Investment/Expansions indicated a continual upward performance surge from Quarter 1 through Quarter 4.

In percentage points, performance results reflected opening of 93% performance followed by a dip in performance to 82% Quarter 2, and then an increase to 100% in Quarter 3 and closing performance of 84.2% in Quarter 4.

For this financial year under review, BITC posted solid financial results with a surplus of P872.968, representing a decline from the previous year’s surplus of P13.991.337. The Centre started on track from the beginning of the financial year with successful execution of activities planned for the year.

However, following the subsequent onset of COVID-19 in the last quarter for the financial year, a few of the activities were negatively affected resulting from restricted cross border transfers. The impact is expected to be severe in the following financial year, especially on the Centre’s financial statements, clearly reflecting the negative impact of COVID-19.

In the financial year ended March 2020, BITC received a total subvention of P96.504.860 which represents a 5% decrease from the previous year’s subvention of P101.830.560. the Grant subvention received for the past 5 years has not been constant due to the financial constraints that the government has experienced over the years which prompted for alignment of financial resources to cover the Centre’s strategic imperatives.

For the year under review BITC’s annual FDI capital inflows realised stood at P1.456 billion against an annual target of P2 billion, which is largely attributable to more than expected performance from the Financial Services sector. The total Domestic Investment for the period was P875.5 million against the set stretched target of P952 million. The total number of jobs registered by the organisation during the year under review was 3329, against an annual target of 3340.

BITC ACHIEVEMENTS

Notwithstanding that, BITC realised high level achievements for the year under review. Chief Executive Officer Keletsositse Olebile said facilitated to establish the Selibe-Phikwe citrus project, which has a job creation expectation of 1000 vacancies as well as the expansion of Kromberg and Shubert Company through the allocation of land for construction of 7000 square metres factory to manufacture wire harness for Mercedes Benz, with over 800 jobs expected this year.

Further, the Centre continued to deliver improved investor facilitation services to both local and foreign investors through the Botswana one Stop service centre (BOSSC). “BOSSC houses relevant government departments under one roof to provide prompt, efficient and transparent services to investors. The services offered by this Centre have grown from slightly above 130 applications for government authorisation in 2013 to 752 in the year under review,” said Olebile.

BITC continued to monitor Botswana’s performance in global competitiveness indicators such as the World Bank’s ease of Doing Business Index. “In an endeavour to improve the investor facilitation mechanism in the country, we have motivated for the drafting of a Business Facilitation Law, which will expedite the setting up and operations of businesses in Botswana.”

ECONOMIC DIVERSIFICATION DRIVE

BITC continued to respond to government’s call to stimulate direct investment and growth of local companies by procuring goods and services from locally based manufactures and services providers. The message to promote locals to actively grow the national economy has been driven through campaigns such as ‘PushaBW’ which utilised an Integrated Marketing Communications (IMC) approach. As at March 2020, local purchases constituted 84% (2019:85%) of the total procurement with foreign purchases at 16% (2019:15%).

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