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BURS loses P80 million claim against Prevailing Securities

Prevailing-Securities

Botswana Unified Revenue Services (BURS) has lost an P80 million tax claim against Prevailing Securities (Pty) Ltd, a company owned by Shadrack Baaitse, an ally of former President Lt Gen Ian Khama.

Lobatse High Court Judge Michael Leburu this week ruled in favour of Danny Julius Guduli in his capacity as the Judicial Manager of Prevailing Securities (Pty) Ltd against Botswana Unified Revenue Services (BURS) and its Commissioner General.

On the 17th August 2018, the company [Prevailing Securities] was selected by the BURS for Tax Investigations. The Managing Director, Baaitse, attended an interview called by BURS, duly represented by Kaone Molapo, Daphney Baka and Samuel Mokelwane. The said interview was in respect to the company’s tax liability.

On the 30th January 2019, the respondent [BURS] issued two notices of assessments. The first one related to Value Added Tax (VAT) and the other to the Income Tax Assessment. In respect to the VAT Assessment, the Respondents issued a total additional assessment of P7, 179, 977.92 for the period January 2013 to December 2017. It further imposed a penalty of 200%, thus bringing the total penalty charge to P14, 359, 955.85.

In the Notice of Assessment, BURS state among others that the company had understated output tax, as evidenced by the Company bank statement, which had indicated that the company had received more “income” than what was declared as “turnover” in the submitted returns. As for input tax, the Respondents stated that the Company had not provided tax invoices.

According to the Applicant, the company had provided all the requisite documents to the Respondents.

The VAT Assessment, according to Danny Julius Guduli, did not include some of the payments made to the Respondents by the Company, for instance, the sum of P119, 952.83 paid on the 1st March 2014 was not reflected on the assessment schedule.

Furthermore, it was averred that the Respondent levied VAT on unpaid invoices and this subjected the company to an unreasonable tax burden for the sum of money received.

The applicant denies that the company understated its income. In amplification, it contended that the company received two types of income, namely income derived from its ordinary course of business and that the other income came from non- income activities.

These non- income activities were not related to any contractual income from its different customers. The non- income activities included reversed instalments, dishonoured cheques, reversed stop- orders, intercompany fund transfers, temporary loans, insurance claims, funds deposited from other bank accounts of the company to meet expenses and rejected salaries from employees bank accounts.

For services rendered, the company was paid in arrears by its customers and not all customers paid for services rendered on time and in full. According to the Applicant, the Respondents levied tax for services rendered, even before the company was actually by its customers.

It is the applicant’s case that the inclusion of non- income activities in the assessment is not only wrongful but irrational and that it amounts to abuse of authority.

With respect to Income Tax Assessment, the Applicant avers that the Respondent erroneously treated all deposits in the company bank accounts as income. The total amount levied as outstanding assessment was P56 703 834.34 which included a 200% penalty.

The total credits from all the four banks stood at P72, 928, 094.61. A total of P22, 068, 250.50 was from non- income activities. The total income before the expenses and running costs, from the four banks was P50, 859, 844.11.

According to the Respondents, this conduct by the company was determined to be intentionally made so as to cheat the fiscus and that this imposition of administrative penalty, was in terms of Section 118 (1) (a) (b) and (c) of the Income Tax Act.

Under the Judicial Review, the documents filed of record will show that the audits conducted against the Applicant covered the periods of 2012- 2018. Information in the Bank statements was wrongfully extrapolated to deem receipt of income when such was not so.

According to the applicant, a number of contracts either did not exist or had expired for the periods under assessment. These included the University of Botswana, BAMB, and BPC contracts, which had expired in 2016; BMC contract which expired in the early part of 2018 and BCL in 2016.

High Court Judge Michael Leburu wrote: “In my view, while banks statements may show the amount in the bank at any given point, they don’t indicate the company’s profitability, the various taxes collected nor the deductions that a tax payer would be entitled to.”

According to the judgement a bank is thus not necessarily a reflection of the profitability or financial performance of a company and cannot always objectively be used to determine the profitability of company nor its VAT liability, given the allowable deductions permitted under the Income Tax and Value Added tax legislations.

“The expenses associated with the company operations are by law not part of its taxable income and any re-assessment should have not ignored this fact.

For all the above reasons, I am satisfied that the Applicant has made out a case for review and has succeeded in showing that the decision of the Commissioner General to include non- income receipts, as part of its taxable income, and receipts that did not constitute a taxable supply was irrational and unreasonable.”

Consequently, the re-assessment by the Respondent is hereby set aside, including the consequences penalties imposed. It is accordingly ordered that the respondent’s additional VAT assessment of P7, 179, 977.92 against Prevailing Securities (Pty) Ltd for the period January 2013 to December 2017 be reviewed and set aside; and that the Respondents’ imposed penalties of 200% against Prevailing Securities (Pty) Ltd in the sum of P14, 359, 955.85 be reviewed and set aside.

Again the respondents Income Tax Assessment of P56, 703, 834.34 inclusive of penalty of 200% against Prevailing Securities (Pty) Ltd be reviewed and set aside.

The respondents were also ordered to carry out a re- assessment of the company’s tax liability (Income Tax and Value Added Tax) within 60 days from the date hereof  and they shall bear the costs of this application, including that of the counsel. The judgement was delivered by electronic mail on the 27th April, 2021.

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Details emerge in suspected Batswana poachers in Namibia

28th June 2022
suspected Motswana poacher arrested

New details about a suspected Motswana poacher arrested in Namibian and his accomplice who is on the run were revealed when the suspect appeared in court this week.

The Motswana Citizen who was shot and wounded by Namibia’s anti poaching unit is facing criminal charges under criminal case number (CR NO 10/06/2022) which was registered at the Divundu Police Station in the Mukwe constituency of the Kavango East Region on 10 June 2022.

It is alleged that a patrol team laid an ambush after discovering a giraffe’s fresh carcass in a snare wire and hanging biltong.  According to the Charge Sheet, the suspect Djeke Dihutu, aged 40 years, is charged with contravening and transgressions of Nature Conservation Ordinance andcontravening Immigration Act 07 in Mahango Wildlife Core Area, Bwabwata National Park. Dihutu’s first court appearance was on the 17th of June 2022, Rundu and it was postponed to the 07 July 2022. He is currently hospitalized in hospital under Police Guards.

Commenting on this latest development, the Namibian Lives Matter Movement National Chairperson Sinvula Mudabeti applauded the Namibian Anti Poaching Unit for its compliance with what it called the universal instrument on the Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly resolution 34/169.

“We are aware that the duties of the police carry a great deal of risk, but our police has shown that they have a moral calling and obligation to protect even foreigners suspected of serious crimes on Namibian soil,” said Mudabeti.

According to him, whereas the Botswana Police Service, the Botswana Defence Force (BDF) and Directorate of Intelligence Service (DIS) have “very low moral ethics, integrity, accountability and honesty, the Namibian security agencies has shown very high levels of ethical leadership in the discharge of their duties even under duress.”

He said Namibian’s anti poaching unit has exercised one very important value, that is, the use of force only when it is reasonable and necessary. Mudabeti said this is in harmony with international best practices as enshrined in Article 2 of the UN instrument on law enforcement conduct, “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Our police have protected the life of a Botswana poacher and accorded him dignity, which is very foreign to our Botswana counterparts,” he said. He said article 3 of the same instrument above, calls for Law enforcement officials to use force only when strictly necessary and to the extent required for the performance of their duty.

“This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of suspected offenders, no force going beyond that was used by our Police,” he said.

Furthermore, Mudabeti said, whereas the universally accepted norm of the law of proportionality ordinarily permits the use of force by law enforcement, it is to be understood that such principles of proportionality in no case should be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

“Our police have used force proportional to the situation at hand. Great work indeed! Article 6 urges law enforcement officials to ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required,” he said.

Mudabeti said the Botswana poacher was immediately taken to hospital whereas the Nchindo brothers who were captured on Namibian soil, beaten, tortured and executed while pleading to be taken to the hospital we left to die.

“The Namibian Doctor gave evidence in court that Sinvula Munyeme’s lungs showed signs of life (during the autopsy) and that he could have survived if he was accorded immediate medical assistance in time but was left to die while BDF soldiers looked and possibly ignored his cry for help,” he said.

Mudabeti said unlike in Botswana where there are no clear separation of powers between the BDF, Botswana Police Service, Department of Intelligence and their Directorate of Public Prosecutions,” we have a system that allows for checks and balances and allows our people and foreigners who are found on the wrong side of the law to be accorded the right to a fair trial.”

He said Botswana citizens are treated with dignity when apprehended in Namibia and not assaulted, tortured and executed. “We are a civilized country that respects international law in dealing with non-Namibian criminals. The Namibian Police have not mistreated the Botswana poacher but have given him the benefit of the doubt by allowing due processes of the law to be followed,” he said.

He added that, “We are a peace loving nation that has not repaid Botswana by the evil that Botswana has done to Namibia by killing more than 37 innocent and unarmed Namibians by the trigger happy BDF.” He concluded that, “Our acts of mercy in arresting Botswana citizens should never be mistaken for cowardice.”

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Gov’t, Unions clash over accommodation

28th June 2022
accomodation

The government has reportedly taken a decision to terminate provision of pool housing and subsidy for civil servants as it attempts to trim the public service wage bill.

This emerges in a dispute that is currently before the Labour Office headquarters lodged by unions representing thousands of civil servants across the country. This publication understands that the decision to cease providing pool housing and rental subsidy for public officers is part of proposals that government put on the table during its negotiations with public service unions in order for it to adjust salaries.

A letter from Labour Office addressed to the Directorate of Public Service Management (DPSM) shows that the directorate is cited as the First Respondent. The letter is titled, “Dispute lodged: Cessation of provision of pool housing and subsidy for pubic officers.”

“This serves as a notification and requirement to a mediation hearing,” the letter informed DPSM. According to the letter, the Botswana Teachers Union (BTU), Botswana Sectors of Educators Trade Unions (BOSETU) Botswana Nurses Union (BONU) and Botswana Land Board &Local Authorities &Health workers Union (BLLAHW) who lodged the complaint are cited as the Applicant.

“Please come for mediation hearing. The hearing will be conducted by Mr Lebang. The hearing is scheduled for date/time 29th June 2022, 09: 00HOURS at Block 8 District Labour Office, Gaborone. Please bring all relevant documents,” reads the letter in part.

According to a document described as a proposal paper on the negotiations on salaries and other conditions of employment of public officers by the employer (government), the government did not only propose to stop providing accommodation to civil servants but also put a number of proposals on the table.

The proposal papers states that the negotiations (which have since been concluded) cover three government financial years; 2022/23, 2023/24 and 2024/25. The government proposed an across the board salary adjustments as follows; 3% for the financial year 2022/23 effective 1st April 2022, across the board salary adjustment of 3.5% for the financial year 2023/24 effective 1st April 2023 subject to performance of the economy and across the board salary adjustment of 4% for the financial year 2024/25 effective 1st April 2024 subject to performance of the economy.

The government also proposed phasing out of retention and attractive (Scarce Skills) Allowance with a view to migration towards clean pay, renegotiate and set new timelines for all outstanding issues contained in the Collective Labour Agreement, executed by the employer and trade unions on the 27th August 2019, to ensure proper sequencing, alignment and proper implementation.
The government also proposed to freeze public service recruitment for the 2022/23 financial year and withdraw the financial equivalence of P500 million attached to vacancies from Ministries, Department and Agencies (MDAs).

Another proposal included phasing out of commuted overtime allowance and payment of overtime in accordance with the law and review human resource policies during the financial year 2022/23, 2023/24 and 2024/25.

The government argued that its proposals were premised on affordability and sustainability adding that it was important to underscore that the review of salaries and conditions of service for public officers was taking place at a time when there were uncertainties both in the global and domestic economies.

“Furthermore there is need to ensure that any collective labour agreement that is concluded does not breach the fiscal deficit target of 4% of GDP,” the proposal paper stated. The proposal paper further indicated that beyond salary adjustments, the Government of Botswana is of the view that a more comprehensive consideration “must be taken on the issue of remuneration in the public service by embracing principles such as total rewards compensation which involves taking a fully comprehensive and holistic approach to how our organization compensates employees for the work.”

The proposal paper also noted that, “Clearly, the increase in salaries and changes to other conditions of service which have monetary consequences will further increase the proportion of the budget taken by salaries, allowances and other monetary based conditions of services.”

“The consequential effect would be a reduction of the portion that can be used for other recurrent budget needs (e.g. maintenance of assets, consumable supplies such as medicines and books) and for development projects,” the proposal states.

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BPF NEC probes Serowe squabbles

28th June 2022
BPF

Opposition Botswana Patriotic Front (BPF) National Executive Committee will in no time investigate charges party members worked with the ruling Botswana Democratic Party (BDP) membership to tip the scales in favour of the latter for Serowe Sub-council Chairmanship in exchange for deputy seat in a dramatic 11th hour gentleman’s deal, leaving the ruling party splinter under the political microscope.

In a spectacular Sub-council election membership last Thursday, the ruling BDP’s Lesedi Phuthego beat Atamelang Thaga with 14 votes to 12 for Serowe Sub-council Chairmanship coveted seat and subsequently the ruling party’s councilor Bernard Kenosi withdrew his candidacy in the final hour for the equally admired deputy chair paving the way for Solomon Dikgang of BPF, seen as long sealed ‘I scratch your back and you scratch mine’ gentleman’s agreement between the contenders.

Both parties entered the race with a tie of votes torn between 12 councillors each, translating for election race that will go down to the wire definitely. But that will not be the case as two BPF councilors shifted their allegiance to the ruling party during the first race for Chairmanship held in a secret ballot and no sooner was the election concluded then the ruling party answered back by withdrawing its candidacy for the deputy chair position to give BPF’s Dikgang the post on a silver platter unopposed.

BPF councilor Vuyo Notha confirmed the incident in an interview on Wednesday, insisting the party NEC was determined to “investigate the matter soon”. “During the race for the Chairmanship, two more BPF voted for alongside the ruling party membership. It was clear Dikgang voted alongside the BDP as immediately after the vote for Chairmanship was concluded, Kenosi withdraw his candidacy to render Dikgang unopposed as a payback,” Notha added.

As for the other vote, Makolo ward councilor will not be drawn for the identity preferring instead to say: “BPF NEC will convene all the councilors to investigate the matter soon and we will take from there.” Notha will also not be drawn to conclude may be the culprit councilors could have defected to the ruling party silently.

“If they are no longer part of us they should say so and a by-election be called,” was all he could say. As it stands now, the law forbids sitting Councilors and Parliamentarians from crossing the floor to another party as to do so will immediately invite for a new election as dictated by the law. Incumbent politicians will therefore dare not venture for the unknown with a by-election that could definitely cost their political life and certainly their full benefits.

Notha could also not be dragged to link the culprit councilors actions to BPF Serowe region Chairperson Tebo Thokweng who has silently defected to the ruling party and currently employed by the party businessman and former candidate for Serowe West Moemedi Dijeng as PRO for the highly anticipated cattle abattoir project in Serowe.

“As for Thokweng he has not resigned from the party but from the region’s chairmanship,” he said. WeekendPost investigations suggest Thokweng is the secret snipper behind the recruitment drive of the votes for the elections and is determined to tear the party dominance in Serowe and the neighbouring villages asunder including in Palapye going forward.

This publication’s investigations also show BPF’s Radisele and UDC’s Mokgware/Mogome councilors are under the radar of investigations for the votes-themselves associated with the workings and operations of Thokweng.

“NEC will definitely leave no stone unturned with their investigations to get into the bottom of the matter. Disciplinary actions will follow certainly,” Notha concluded, underscoring the need to toe the party line to set a good precedent. For the youthful councilor, the actions of his peers has set a wrong precedent which has to be dealt with seriously to deter future culprits.

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