High Court in Botswana has dismissed with costs an application by AG Nutrition Botswana to allow it to sell its Malaysian products in the country.
“In the result, the application stands to be and is hereby dismissed with costs,” Justice Abednego Tafa ruled this week.
The networking company had sought court to interdict the Botswana Medicines Regulatory Authority (BOMRA) from refusing AG Cera products entry into the country.
The product is described as ‘Natures gifts for optimal health’ with high antioxidants, skin protection, anti-cancer, cardiovascular, supports bone and joint health, anti-inflammatory, lowers sugar levels and said to be improving general health.’
BOMRA had cautioned that since the product was food and not medicine, the distributors should avoid making medicinal claims in advertising the product.
This was after BOMRA officials had taken the product from the deponent saying they had tested it and established that it is food.
AG Nutrition also sought court to order and direct that BOMRA, or any person acting through it and/or in concert with it, be interdicted from refusing the AG Cera products entry into Botswana.
They also sought relief for court to order that the AG Cera product that is currently seized at the behest of BOMRA be forthwith released to AG Nutrition in Botswana.
They had also wanted court to rule that BOMRA pay costs of the application.
The applicant on the matter, AG Nutrition is anchored on the founding affidavit of one Mokganedi Ketlhoilwe, the Managing Director of AG Nutrition.
According to the deponent to the founding affidavit, AG Nutrition has, since October 2019, been importing the product subject matter hereof.
He alleges further that at some point upon arrival of the product at Sir Seretse Khama International Airport, he was invited by Ministry of Health and Wellness officials for product assessment.
The assessment said conclusion was the product “AG Cera” was food and BOMRA has no jurisdiction over it but no evidence has been proffered to prove the allegation.
According to AG Nutrition, BOMRA officials came across flyers of people who bought the product from AG Nutrition for reselling as the business is a networking business. The flyers purported that the product cures certain medical conditions.
BOMRA makes it clear that; “importation of the product by AG Nutrition was illegal and it should not have been allowed entry into the country. The officials at the point of entry are not employees of BOMRA but of BURS and Ministry of Health and Wellness. They have no power to assess and determine a product as food or medicine. Such powers are statutorily conferred on BOMRA only.”
BOMRA’s mandate is to ensure that all medicines and related substances used in Botswana are in conformity with established criteria of quality, safety and efficacy and uphold standards for the regulatory functions value chain and ensure adherence to best practice.
They also conduct tests and analysis of medicines and inspection of privately-owned laboratories to ensure good laboratory practice as the cornerstone of compliance as well as; ensuring the safety of cosmetics and medical devices that is, ascertaining that cosmetics and medical devices companies follow regulations to keep cosmetics and personal care products as safe as possible.
Justice Tafa highlighted in the judgement that it is common cause that AG Nutrition sells or distributes the product to the public and that the product is yet to be registered.
As a matter of fact he said that it is common cause that AG Nutrition has applied for registration of the product and BOMRA has made it abundantly clear to AG Nutrition that the product is not to be imported into the country pending the determination of the application for registration.
“It would be improper, in my view, for the court once it has found that the product falls within the definition of medicines, to order the release and further importation sale and/distribution of the product pending its registration,” he pointed out.
He also stated that he is fully cognisant of the financial harm that AG Nutrition is likely to suffer while the registration process is ongoing. “However, in all circumstances, any harm AG Nutrition might suffer as a result of the enforcement of the Act is outweighed by the public interest and interests of BOMRA.”
‘‘I say this knowing very well that AG Nutrition made an undertaking to not advertise the product as containing medicinal benefits and even toned down on its claims in subsequent flyers,’’ Justice Tafa observed.
The Judge said however the bottom line is that its earlier claims have not been retracted and the public out there still believes that the product can cure ailments such as cancer and fibroids.
In the matter, Uyapo Ndadi of Ndadi Law Firm represented AG Nutrition Botswana (Pty) Ltd while Daniel Swabi of Osei-Ofei Swabi and company stood in for Botswana Medicine Regulatory Authority (BOMRA).
Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.
Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.
She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”
Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.
On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.
“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.
One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.
The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”
The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.
Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.
Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.
The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.
The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.
Standard Chartered Bank Botswana (SCBB) has informed the government that it will not be accepting new loan applications for the Government Employees Motor Vehicle and Residential Property Advance Scheme (GEMVAS and LAMVAS) facility.
This emerges in a correspondence between Acting Permanent Secretary in the Ministry of Finance Boniface Mphetlhe and some government departments. In a letter he wrote recently to government departments informing them of the decision, Mphetlhe indicated that the Ministry received a request from the Bank to consider reviewing GEMVAS and LAMVAS agreement.
He said: “In summary SCBB requested the following; Government should consider reviewing GEMVAS and LAMVAS interest rate from prime plus 0.5% to prime plus 2%.” The Bank indicated that the review should be both for existing GEMVAS and LAMVAS clients and potential customers going forward.
Mphetlhe said the Bank informed the Ministry that the current GEMVAS and LAMVAS interest rate structure results into them making losses, “as the cost of loa disbursements is higher that their end collections.”
He said it also requested that the loan tenure for the residential property loans to be increased from 20 to 25 years and the loan tenure for new motor vehicles loans to be increased from 60 months to 72 months.
Mphetlhe indicated that the Bank’s request has been duly forwarded to the Directorate of Public Service Management for consideration, since GEMVAS and LAMVAS is a Condition of Service Scheme. He saidthe Bank did also inform the Ministry that if the matter is not resolved by the 6th June, 2022, they would cease receipt of new GEMVAS and LAMVAS loan applications.
“A follow up virtual meeting was held to discuss their resolution and SCB did confirm that they will not be accepting any new loans from GEMVAS and LAMVAS. The decision includes top-up advances,” said Mphetlhe. He advised civil servants to consider applying for loans from other banks.
In a letter addressed to the Ministry, SCBB Chief Executive Officer Mpho Masupe informed theministry that, “Reference is made to your letter dated 18th March 2022 wherein the Ministry had indicated that feedback to our proposal on the above subject is being sought.”
In thesame letter dated 10 May 2022, Masupe stated that the Bank was requesting for an update on the Ministry’s engagements with the relevant stakeholder (Directorate of Public Service Management) and provide an indicative timeline for conclusion.
He said the “SCBB informs the Ministry of its intention to cease issuance of new loans to applicants from 6th June 2022 in absence of any feedback on the matter and closure of the discussions between the two parties.” Previously, Masupe had also had requested the Ministry to consider a review of clause 3 of the agreement which speaks to the interest rate charged on the facilities.
Masupe indicated in the letter dated 21 December 2021 that although all the Banks in the market had signed a similar agreement, subject to amendments that each may have requested. “We would like to suggest that our review be considered individually as opposed to being an industry position as we are cognisant of the requirements of section 25 of the Competition Act of 2018 which discourages fixing of pricing set for consumers,” he said.
He added that,“In this way,clients would still have the opportunity to shop around for more favourable pricing and the other Banks, may if they wish to, similarly, individually approach your office for a review of their pricing to the extent that they deem suitable for their respective organisations.”
Masupe also stated that: “On the issue of our request for the revision of the Interest Rate, we kindly request for an increase from the current rate of prime plus 0.5% to prime plus 2%, with no other increases during the loan period.” The Bank CEO said the rationale for the request to review pricing is due to the current construct of the GEMVAS scheme which is currently structured in a way that is resulting in the Bank making a loss.
“The greater part of the GEMVAS portfolio is the mortgage boo which constitutes 40% of the Bank’s total mortgage portfolio,” said Masupe. He saidthe losses that the Bank is incurring are as a result of the legacy pricing of prime plus 0% as the 1995 agreement which a slight increase in the August 2018 agreement to prime plus 0.5%.
“With this pricing, the GEMVAS portfolio has not been profitable to the Bank, causing distress and impeding its ability to continue to support government employees to buy houses and cars. The portfolio is currently priced at 5.25%,” he said. Masupe said the performance of both the GEMVAS home loan and auto loan portfolios in terms of profitability have become unsustainable for the Bank.
Healso said, when the agreement was signed in August 2018, the prime lending rate was 6.75% which made the pricing in effect at the time sufficient from a profitable perspective. “It has since dropped by a total 1.5%. The funds that are loaned to customers are sourced at a high rate, which now leaves the Bank with marginal profits on the portfolio before factoring in other operational expenses associated with administration of the scheme and after sales care of the portfolio,” said the CEO.