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Court rules against Debswana in P60 million suit


The court has ruled against Debswana Diamond Company in a case in which the diamond miner was embroiled in a bitter One Million Four Hundred and Ninety five Thousand One Hundred and thirty three rand 60 Cents (ZAR 61 495 133.60) legal tiff with a South African company, NA SERA General Sales. The company was hired to drill the 165MM blast holes at Letlhakane and Damtshaa Mines.


The South African Company had applied to the court after Debswana ordered them to leave the site immediately a few weeks after the South African company was placed under business rescue in terms of the Company’s Act in South Africa. Business rescue is a new concept in South African Law and was introduced through the enactment of the Companies Act 71 of 2008 (“The Act”).


One of the main purposes of the Act as encapsulated in Sec 7 of the Act is to “provide for the efficient rescue and recovery of financially distressed companies in a manner that balances the rights and interests of all relevant stakeholders. Business Rescue in South Africa is essentially the same as Judicial Management in Botswana.


Debswana had ordered the company to vacate the site and cease drilling activities and also remove its equipment from the mines.The court order has complicated Debswana planning as they (Debswana) had already appointed another Company,Blasting and Excavation to commence drilling blast holes at the Damtshaa mine where the South African Company was drilling before being stopped.


Delivering his ruling on the matter last week,Justice Michael Mothobi ordered Debswana to return to the company its control of the mines.


“The respondent (Debswana) is ordered to return to the second applicants’ possession and control the drilling site situated at the Damtshaa mine forth,” said Justice Mothobi when delivering his judgement.


The judge further ordered Debswana to allow Na Sera General Sales “to execute its obligation under the contract number 395-SCM C005750 forthwith.” He further warned Debswana against interferring with the company on performing its duties.


“The order above operate as interim interdicts with immediate effect pending the final resolution of the dispute over the Debswana’s repudiation of the agreement,” the court order said.


Mothobi further directed the SA Company to institute arbitration proceedings in terms of clause 20.4 of the contract or other applicable provisions within 30 days of the order,”failing which the orders some of the above orders shall lapse.”
The judge in the end ordered Debswana to pay the costs of the application,such costs to include legal costs of both parties.


The dispute arose when the South African Company appointed a business rescue practitioner to exercise full management and control over the Company in substitution of its Board of Directors and pre-existing management of it.


Following this, Debswana terminated the contract entered into between them and the Company, giving rise to a series of legal tussles and disputes between the two parties over the matter.The applicants disputed Debswana’s right to cancel the contract saying the reasons were not those that were agreed upon in the contract.


The parties had agreed that the contract can only be terminated if the contractor “becomes bankrupt or insolvent,goes into liquidation,has a receiving or administration order made against him,compounds with his creditors or carries on business under a reciever,trustee or manager for the benefit of his creditors,or if any act is done or event occurs which (under applicable laws) has a similar effect to any of these acts or events.”


The South African based company which had employed scores of Batswana argued that the purpoted cancelation was invalid because of the disputed clause, arguing that the clause didn’t refer to business rescue.


The company in one of the letters to Debswana argued that Debswana “has allowed the business rescue practitioner to drill,well knowing that the company is under business rescue.” They added “you have therefore waived your rights to cancel the agreement.The other shareholder has consented that I may cede the agreement to Advanced Capital Botswana,” said the Business Rescue practitioner,Etienne Naude to Debswana.


Advanced Capital Botswana is a company owned by former Botswana Democratic Party Secretary General,Mpho Balopi according to the papers before Weekend Post.The SA Company had wanted to invest in Balopi’s company and become equity partner.


Debswana through its legal Counsel,Ludo Tema, however disagreed with the Company’s enterpretation of the Clause or agreement. “We do not agree with your views on the clause.In our View the specific events set out in the clause are clearly not (and are not intended to be) an exhaustive list of events which entitle the employer to cancel.In our view the clause need not mention ‘business rescue’ specifically in order for it to constitute an event entitling the employer to cancel,” said the Debswana lawyer in an email sent to the Company business rescue practitioner, Naude.


He added that “in respect of Nasera,a number of events listed are in our view,applicable and we believe that the process of business rescue is sufficiently covered by the clause.” Tema continued denying that they had waived any rights in terms of the contract saying “we have prudently and expeditiously under the circumstances and more importantly,in line with the requirements of the contract.”

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Sex on the Alter: Demons lurking within holy walls

29th September 2020
Sex-on-the-Alter--Demons-lurking-within-holy-walls-

From time immemorial the church was seen as a sacred haven for weary souls and those who need rest from worldly aches and pains. This is even written in the Holy Bible; “Come to me, all you who are weary and burdened, and I will give you rest.

Take my yoke upon you and learn from me, for I am gentle and humble in heart, and you will find rest for your souls. For my yoke is easy and my burden is light,” Matthew 11:28-30.

This being said, anyone would be forgiven to think that the first place to run to would be the church. Time has however changed this.

The atrocities perpetrated by the church and their pastors or those who have been called upon to ‘lead the flock’ have not only distorted their mission, they have caused followers immeasurable pains.

Adorned in the finest regalia in church, the so called men of God are nothing but wolf in sheep’s clothing as they lurk in church corners to prey on the innocent and vulnerable in a place where victims thought was their ‘Father’s house’.

Behind every monster are those who clean up after it and in this case, these are church followers who are alive to the inhumane acts caused by the very men of God whom they have put on pedestals. These followers, more often than not are Elders in the church or those in the revered pastor’s inner circles. These followers would, in an attempt to shield their ‘man of God’, portray the victim as a Jezebel, and shield their pastor and the church’s reputation, forsaking the trauma inflicted upon the victim.

The author of ‘Sex on the Alter’, Kaelo McCoffee was inspired to pen down his book after seeing the endless and unreported incidents that occurred within church walls.

It’s like a play, a drama based on true stories of how “men of God” abuse women sexually, use them and dump them.  Not just that, but it addresses how desperate women are for marriage and relationships, resulting in pain. This is covering ill activities happening in the church,” said McCoffee.

“The purpose of this book is to open someone’s eyes, not just ladies, even guys, that church might be seen or recognised as a good place to be, that might be true yes, but people shouldn’t feel comfortable because they are in church. They should be aware of the dangers that can happen to them in church, like I talked about abuse. I wrote this book to bring awareness, mostly to women because they’re the ones always going through such mostly.”

If one is to look at the grabbling GBV cases within Botswana that occur on a daily basis, one would expect the church to intervene. Not this time around, seeing as how the church is marred with such cases.

“I’ve seen young girls being used because they fell in love with the guy in a nice suit, they get deceived by material things, they get lied to, “I’ll marry you” but after sleeping with them, they leave them, young girls end up reporting cases of rape, yet the truth is they were in love, but because the promises weren’t fulfilled there’s always drama. Some get paid to be silent. I won’t mention anyone by names, but this is what has been happening in many churches, hearts are being broken in the name of the “anointed one”. I’m not saying every man of God, I’m talking about things I know of and I’ve heard happening,” he said.

“And to God it’s an abomination to drag His name into sin and claiming to be righteous, if God has promised in His word that His servants will even face more punishment for diverting His people into wrong doings then they deserve to be punished, they’re humans and they are not even doing what they preach. If the men of God in the Bible got punished for such doings what more of these guys who mess with our sisters.”

In an Interview with WeekendPost, the founder of Epistle of Power International Church (EPIC), Duncan Katse confirmed with this publication that these devious acts are very much present within churches and orchestrated by the so called ‘pastors’.

“It is true and one thing that makes it true is that we have got a lot of pastors who are not really trained in the area of becoming a pastor and there was no discipline instilled. Young ladies also trust their pastors and spiritual mentors with their all; their lives, their bodies. So when these pastors notice that they are highly regarded they can do anything. If there is no alignment in the mentorship, it is easy for the pastor to manipulate the congregants with spiritual things.”

“Some would say ‘God wants us to have our moment alone’, they will start manufacturing funny prophecies to make the person comfortable to relax with them. Sometimes in private spaces, which becomes very dangerous for a young lady. Not all the ladies who go to church have the intension of sleeping with the man of God. Most women do not report these cases because some judge themselves and are afraid to be accused for falsely accusing the man of God,” said Katse.

How women are raped in church

According to close sources, these so called ‘men of God’, threaten young girls after sleeping with them and that they will be cursed should they decide to speak out. Some will be threatened with the infamous line; ‘touch not my anointed.’

“They use their spiritual and prophetic authority to manipulate these women into raping them. There is also an oil called ‘do as I say’ and most of the girls who became victims will tell you, after being raped, they did not know how the rape occurred. Once they apply that oil, whatever they say you are going to do it whether you like it or not.  That is why most of these girls are raped and left sick because most of these men of God are sick. They are sick of HIV/AIDS and STI’s. Before raping these women they prepare them emotionally by taking them out for dinners and they end up raping them.”

Botswana Council of Churches responds

Sexual violence and abuse has been an enormously painful and common feature of our collective past. No sector of society, churches included, has been immune to the problem of sexual violence. It is horrible. Whenever we have seen sexual violence, it has always been an offence to God, and a shattering of God’s good, redemptive hopes for the human story. Sexual abuse is clearly a shattering of God’s intentions for our humanity,” said Bishop Metlha Beleme from Botswana Council of Churches

“When God’s ways are honoured, there is love, because love – the Scriptures tell us – is the very nature and character of God. When you think about it, sexual violence does all the opposite of 1Corinthians 13:4-7, which talks about love. God wants us to experience love. So, apart from the laws of the land, the Church also has Canon law and the Church court for the trial of such offences as Sexual Immorality.”

Beleme further highlighted that; ‘‘there are other healing processes that follow e.g. forgiveness and reconciliation, counselling. Amongst other things we can confess that Church Leaders and Pastors are sinners too, and must be held accountable,” he said.

Maybe when all is said and done, the long arm of the law will forever elude churches as evidenced by the many cases internationally regarding the Catholic church and the cases of paedophilia and child molestation that have been ongoing for years on end. And very rarely in Botswana do pastors face criminal charges in court for sex offenses and that may also be because very few women come forth for fear of being ostracised by both church and society.

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Parliament caucus: The toxic destruction of MPs’ legislative duty

29th September 2020
Parliament

Every five years, a cohort of newly elected Members of Parliament (MPs) gather at parliament buildings to take a symbolic oath to assume new role as rarefied individuals who make Botswana’s laws — as prescribed in the constitution — for the good governance of Botswana. Staff Writer ALFRED MASOKOLA observes an abdication of responsibility that has become a new normal in the business of parliament. 

Few days before President Sir Ketumile Masire cleared his desk at Office of the President to end an eventful and successful 18 year presidency, his apparent heir, Festus Mogae was reaching out to opposition legislators in a bid to solicit for support for his choice for Vice President.

Since 1997 constitutional amendments, parliament has been mandated with the responsibility of endorsing the Vice President before assuming office.

Mogae was scheduled to ascend to the highest position in the land in wake of series of events in the ruling Botswana Democratic Party (BDP) that made him the only viable candidate. Beleaguered by factions, Mogae could not count on his polarised party.

As many noted, Mogae was relatively a new entrant in the BDP politics. Though he was an accomplished technocrat, he was not a political power horse and was without the charisma that the likes of Daniel Kwelagobe, Ponatshego Kedikilwe and the late Lt General Merafhe had.

Luckily for Mogae, his choice for Vice President was a likeable figure — Lt Gen Ian Khama — and accepted across factional divide, and even more remarkably, by some in opposition ranks. The name was endorsed by all BDP MPs, and the cherry on top; by additional two opposition MPs.

The build-up to this accomplishment however highlighted one major thing that Mogae never took for granted — the legitimate power of MPs.

Even in his presidency, Mogae sought to use parliament caucus for the purpose of achieving consensus rather than imposing his own will. Throughout his presidency, Mogae had to navigate through the hostile factions that kept him on his toes.

In 2003, Mogae in what proved to be naïve, publicly endorsed his Vice President- Khama, in the party chairmanship race against Kedikilwe, the co-leader of what was then known as Kwelagobe/Kedikilwe faction, and later Barataphathi.

Inevitably, Khama won the chairmanship — a development that saw Barataphathi losing control of the Central Committee, for the first time since 1981. With victory in 2003, emerged a rebranded faction called A-Team, led by Merafhe and Jacob Nkate.

The faction will come to dominate both the Central Committee and cabinet after 2004 general elections. Mogae had left out Kwelagobe, Kedikilwe, and GUS Matlhabaphiri out of cabinet after 2004 general elections, inadvertently strengthening the backbench which closed ranks with opposition MPs to subject the executive to scrutiny.

At the height of exercising their power, the backbench blocked and rejected government policies and other pieces of legislation brought before parliament.

By 2006, cabinet found it difficult to pass bills, including the Judges Pension Bill and the crucial intelligence bill which created the DIS in 2007.

Faced with a rigid backbench, Mogae reshuffled his cabinet in 2007 restructuring ministries to accommodate members of rival faction in cabinet. Thereafter, the relationship between cabinet and backbench became cordial.

“I am fully aware that the MPs, both the former ministers, the cabal of some new MPs and the rest of the House, can make and unmake me politically,” Mogae famously said at 2001 BDP Congress in Palapye, as he deliberated on some of the demands brought forward by MPs.

Like anywhere else in democratic dispensations, MPs hold their own and are not pushovers, even in instances where the executive belongs to the same political party that controls the legislative house.

Mogae had accepted that MPs have their own responsibility and that their power was legitimate. Throughout his presidency, his modus operandi was to consult MPs through caucus whenever an important decision was to be made in parliament.

The approach was also the tradition during the presidency of Masire, the founding father of both the BDP and the nation. Masire considered therisanyo paramount prior to any decision making and was described by Mogae during his memorial as, “consultative, collaborative and patient.”

In 2008, things started to change. In recent years, BDP caucus has become increasingly powerful. Unlike in the past, instead of seeking consensus, MPs have been forced to support decisions of the cabinet, even when MPs are not in agreement.

“Caucus has always been there and it is part and parcel of parliament in democracy. Caucus can be flexible depending on leadership. Some issues are allowed conscience debate if caucus cannot reach consensus,” said a high ranking BDP member who served as MP under both Mogae and Khama.

“Mogae was liberal and allowed MPs to use their conscience when there was no consensus. Caucus only became a contentious issue during Khama [Ian] presidency and today.”

In 2011, weeks after civil servants called off strikes that lasted nearly three months, and crippled the economy, then junior minister in the ministry of Local Government, Kentse Rammidi resigned from the cabinet amid a position taken by the party.

In trying to deal with power of civil servants, cabinet brought before parliament a Bill that sought to prevent a number of cadres in the civil service including teachers from participating in industrial action by making them essential service.

Rammidi, who had sympathised with workers during the strike chose to quit the party after BDP caucus forced MPs to support the bill which was to be brought to parliament by then Minister of Labour and Home Affairs, Peter Siele.

The development set had ushered in a new era in the governance of BDP, with the Executive effectively rendering Parliament — which by all intent and purpose is meant to prove checks on it — a rubber stamp.

The BDP caucus effectively derives its mandate from President as the head of executive.

The latest victim of the domineering caucus is Jwaneng-Mabutsane MP, Reggie Reatile.

Two months ago, the maverick MP was slapped with suspension for abstaining instead of voting alongside agreed party caucus positions.

In the build-up to his suspension, Reatile had on numerous occasions voted against the BDP on the Parliament floor. Reatile also abstained when voting was called on the Botswana Defense Force (BDF) Amendment Bill meant to create the position of Judge Advocate General.

Reatile was also the BDP black sheep that voted against Speaker of Parliament, Phandu Skelemani’s decision to suspend Leader of Opposition (LOO) Dumelang Saleshando, from parliament last month.

Prior to Reatile, maverick Ignatius Moswaane, Francistown West legislator, was also suspended. Moswaane has also proved to be a thorn in the flesh of the ruling party as he consistently refused to toe the party line, instead following his conscience.

Moswaane has since resigned from the BDP in favour of Umbrella for Democratic Change (UDC).

The insistence on block voting have seen parliament being ultra-polarised, and inadvertently at the expense of the public and good governance.

Despite the country grappled with rising incidence of Gender Based Violence (GBV), the ruling MPs rejected a motion tabled by Mahalapye East MP, Yandani Boko, following a caucus decision.

Boko had tabled a motion on urgency calling for parliament to request President Mokgweetsi Masisi to set-up a Commission of Inquiry on Gender Based Violence (GBV) and other Sexual Offences.

During the BDP caucus, it was agreed that the motion should not be agreed upon, but instead be countered with a suggestion that the duty be referred to an Inter-Ministerial Committee.

Commissions of Inquiry Act empowers the President to set-up a commission and to set its terms of reference.

The motion was however withdrawn by the mover following lack of support from BDP majority.

The rejection of the motion is part of many that have not survived the might of BDP caucus.

In the run-up to 2019 general election, Masisi promised to repeal the infamous Media Practitioners Act passed during his predecessor’s administration. The promise was buttressed in the BDP 2019 election manifesto.

However, when Selibe Phikwe West lawmaker, Dithapelo Keorapetse, brought before parliament the same bill, the ruling party caucus tore it apart. In brief; it was rejected.

The constitution of Botswana, adopted in 1966 following independence, vests legislative powers in parliament. Parliament, through its committees is empowered to provide oversight.

Parliament, indirectly elects the President and also has power to dissolve parliament through a pass of motion of no confidence on government supported by simple majority.

Parliament also approves national spending and also entitled to amend certain provisions of the constitution, save for entrenched provisions.

In giving parliament the legislative duties, the constitution also gives the President the power to ascent to bills passed by parliament or return them to parliament if not satisfied. Nevertheless, if parliament insists on not making any amendments, the President is compelled to ascent to the Bill failing which parliament will lead to the dissolution of parliament, necessitating new elections.

With so much power at its disposal why is parliament abdicating its true responsibility?

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Gov’t urged to stimulate economies until 2021

29th September 2020
Gov’t-urged-to-stimulate-economies-until-2021-Women-are-amongst-the-most-vulnerable-and-hard-hit-groups,-including-migrants,-young-people-and-informal-workers

The latest edition of the International Labour Organisation (ILO) Monitor shows the continuing and devastating impacts of the pandemic on jobs and labour income since early 2020, and the massive disruptions in the labour market that will persist into the fourth quarter of this year.

ILO analysts argue that policymakers will need to maintain support to employment and incomes over the coming months and well into 2021, and to address key challenges.

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