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Mystery of missing man who vanished in police custody

The Botswana Police Service boss, Keabetswe Makgophe and several police officers were this week subpoenaed before the Lobatse High court to answer for the whereabouts of a Molepolole man who went missing from police custody in August 2011 under mysterious circumstances.

The Botswana Police Service boss, Keabetswe Makgophe and several police officers were this week subpoenaed before the Lobatse High court to answer for the whereabouts of a Molepolole man who went missing from police custody in August 2011 under mysterious circumstances.


The family of the “missing man”, Olefile Momphitlhi suspects that he was killed by the police on the night of his arrest and was in court the whole of this week demanding that the police give them their son.


“The last time Olefile was with his brother was when he entered the Molepolole Police station in September, 2011 and all we want from the Police is to give us back our son. Only the Police know where he is,” the family representative, Mpho Laolang told the court.


An undisputed fact before Justice Railer Busang of the Lobatse High court is that Olefile was detained at Molepolole Police station on the fateful day but the main contention is about his alleged escape from legal custody. The Police maintained that Olefile escaped from legal custody and his family maintains that his disappearance reeks of foul play.


“There was a point when we suspected that our missing son might have been buried in a newly dug grave at Masu-a-ditshwene cemetery and we asked the police to investigate the grave. The mysterious grave emerged a few days after we were told our son escaped from police custody. A few days after we reported the matter to the police we discovered that the grave has sunken, raising suspicion that whatever that was put there earlier had been exhumed,” Laolang speculated and was overruled by the court over the matter.


Olefile is a suspect in an armed robbery case that took place at Taj filling in Molepolole where about P100 000 cash was stolen. Olefile is alleged to have transported the robbers in his car. After the police came looking for him at his mother’s house, he went to the police station with his brother and a cousin and he was detained as he was to appear for mention at the Molepolole Magistrate court with other suspects the following morning.


The following morning when the brother went to check on him at the Police station he was told that he had escaped the previous night from Police custody. The police alleges that Olefile escaped somewhere in old Naledi where he had led three Criminal Investigation Department (CID) officers to the car that was allegedly used during the robbery. The Police had admitted negligence before the High court over this matter.


“That the suspect is still at large since 07/08/11 and was reported missing by his parents, further that the suspects was last seen with the defaulters (Kristen, Modongo and Phuku) the inference that can be drawn is that the BPS knows his whereabouts,” the police disciplinary committee wrote in one of the BPS internal investigations documents which the court forced the Police Commissioner to submit this week.

Cause for suspicion

Although Makgophe and his officers maintains that Olefile escaped from lawful custody the family is not convinced and want the Police to explain the text message that was sent to Olefile’s brother soon after the alleged escape.

The text message written, (translated) “I have escaped to South Africa. I’ll return next year. Tell Mum,” later emerged that it was sent through a mobile phone which was an exhibit in a different matter which was under police investigations.

The owner of the phone admitted before the court that his mobile phone together with the simcard was in custody of the Molepolole Police. However it could not be produced as evidence because it has since disappeared together with vital police records, including cell register and occurrence book that covered the period when Olefile was detained.


Olefile’s co-accused in the robbery case, Mothusi Popego told the court that when the police officers removed Olefile from the cell that night, they threatened that they will kill him unless he tells them where the vehicle and some of the money they got from the robbery were kept.


According to Popego, the police officers had beaten and tortured Olefile before locking him up and his screams could be heard from the detaining cells where other co-accused were kept.


“When they removed him from the cell that night he was chained and I saw them through a tiny window on the cell door that they pushed him into a car and drove off,” Popego bore witness before court.


The Police have however denied that they had chained him when they left Molepolole police station that night.


“On the date mentioned in the charge sheet, the investigating team decided to interrogate the said Olefile and took him out of the cells at about 2300 hours at Molepolole Police station. During the interview, the said Olefile indicated to the investigation team that an exhibit pertaining to the robbery case he was interrogated for was at Old Naledi, Gaborone.

The investigating team then gave the suspect all the properties which included shoes, hat and belt but did not handcuff him and drove to Old Naledi. At Old Naledi the suspect took the investigating team to a certain yard which he alleged to be his uncles and it was at the place where the suspect disappeared,” the police maintained before court.


However the fact that the investigating team failed to immediately report the incident to the police raised great suspicion that they could have been hiding something. In fact the Old Naledi Police has distanced itself from the matter and told the court that to date no formal report on the incident was ever reported at their station.


Evidence that was forced from the Police Commissioner through a court order suggests that nobody in old Naledi ever saw the investigating team in company of Olefile. The internal investigations suggested that there was no reasonable justification why the suspect was transported at night and not handcuffed. According to evidence submitted before court, the law does not provide for night search.


The former Station Commander of Molepolole Police station, Andrew Bosilong has also stated in an interview outside court that his officers never reported the incident to him. Bosilong said he only learnt about the missing man when his family logged a complaint on the matter.


This was so because after removing Olefile from the cell, the officers did not record themselves in the occurrence book as is required by police procedure.

The Investigating team

The investigating team which included, Inspector Thatayaone Kristen, Constables Modongo Modongo and Bonani Phuku have since appeared before the police disciplinary hearing in 2012 and were found guilty of “gross negligence and permitting a prisoner to escape”.


Phuku and Modongo were each fined P200 and dismissed from service in November 2012. However on appeal before the Police Council that included, Reverend Mpho Moruakgomo, Adolph Hirschfeld, Sadique Kebonang, Hermentina Mogami amongst others, their sentences were reversed and they were reinstated and transferred to other Police stations outside the Kweneng region.


However Inspector Thatayaone Kristen was demoted from the rank of Sergeant and his salary reduced to a lower notch and was also transferred to another Police station.


Meanwhile the Police still claims that there are still in pursuit of Olefile. In May 2012 the Botswana police Services (BPS) inquired from INTERPOL, South Africa as to whether Olefile had somehow crossed to the neighbouring country, but the response was that, “subject (Olefile) has been checked in the movement control system and the last movement was from South Africa into Botswana via Schilpadhek (Tlokweng border) by foot on 17 June 2011 at 1750 hours.”

According to Interpol, Olefile was in Botswana.

In the enquiry, the police had described Olefile as a dangerous man and the message they gave to Interpol was that his “anonymity or privacy is not protected by the applicable national laws,” and that if traced the South Africans must “take all appropriate measures” in accordance with their national laws when dealing with him.

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BONELA speaks on same-sex decriminalization case

18th October 2021
BONELA

In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy. 

The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.

However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world.  The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.

Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.

“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.

The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)

Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.

“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.

“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.

“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.

“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”

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Masisi warns Gov’t officials

18th October 2021
President Masisi

The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.

For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.

In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.

According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.

In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled.
Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.

Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects.  During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies.  Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).

 

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Guma’s battle for millions of Pula give Court headache

18th October 2021
Guma Moyo

A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination.  The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.

The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.

Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.

He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful.  Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.

But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB.  FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.

Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.

Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB.  “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.

The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).

FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders.  Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.

In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.

But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings.  “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.

FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries).  The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?

“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.

“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.

He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”

“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.

Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.

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