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Debswana P110 million suit could be decided on Turquand Rule

Botswana Diamond

Debswana Diamond Company’s hopes of surviving a P110 million suit against intelligence consultancy company, Infotrac (Pty) Ltd hinges on the Turquand Rule, which Judge Abednego Tafa has requested the lawyers representing the two entities to make submissions on.  

The Turquand rule, which is founded in common law, serves to protect bona fide third parties who are not aware of any internal irregularities of a company which may result in affecting the validity of a contract/transaction with the company. The Turquand rule has been commonly referred to as the ‘indoor management rule’. According to the rule, a company entering into transactions with third parties has a duty to ensure that all its internal rules have been complied with.

The Turquand rule relieves third parties from enquiring whether the company it intends on contracting with has complied with all its internal rules. It serves to shield bona fide third parties from being prejudiced by the company’s failure to comply with its own internal requirements. The Turquand rule, however, only serves as protection to third parties acting in good faith. This means that a third party who knew or even suspects that internal formalities have not been complied with but deliberately turns a blind eye will not be protected.

Debswana is currently in court with its erstwhile preferred covert services partner, Infotrac (Pty) Ltd, after refusing to settle P110 million debt as demanded by the latter. According to evidence given before court for the past three weeks, Debswana in 2017 commissioned Infotrac to provide covert services aimed at ensuring that then General Manager of Jwaneng Mine, Albert Milton ascends to the post of Managing Director, Debswana when Balisi Bonyongo’s tenure ends in 2018.

The High Court was informed that as part of its scope, Infotrac was expected to reach out to key figures in the echelons of power to lobby for the appointment of the late Albert Milton as the Managing Director of Debswana. Though Milton was already earmarked for the post, it has been revealed that his ascendency faced sabotage from various quarters, including the then outgoing Debswana MD, Bonyongo, who did not see eye-to-eye with his would-be successor.

In the grand scheme of things, an outgoing Debswana MD is an influential figure who could have say on their successor. As part of lobbying for Milton, the court has heard that Infotrac engaged Bonyongo on reports of bad blood between him and Milton. Bonyongo, when testifying this week, denied the allegations and ascertained that he supported Milton as the next MD of Debswana. Initially, there were reports that Milton’s personal life could be used against him in his bid to become MD.

Infotrac, the court heard, was involved not only to ascertain his suitability for the MD post, but to also advise him on how to conduct his personal life, as well as lobbying key players to be favourably disposed towards him. When giving chief evidence, Infotrac Managing Director, Mompoloki Motshidi indicated that among the people he lobbied by guiding Milton in his scope of work was then Vice President (and later President) Mokgweetsi Masisi. Masisi and Milton reportedly had existing good rapport, which made the lobbying essay. Infotrac capitalised on this relationship by guiding Milton on how to lobby Masisi.

Then Chief of Intelligence; Isaac Kgosi, and former Governor of Bank of Botswana, the late Linah Mohohlo were also lobbied. Later, after Masisi became President, Milton succeeded Bonyongo as Debswana MD in December 2018. Infotrac contends that, this transition, adds to the success of the work that was carried out by the company.

After completion of the work, Debswana failed to pay the bill. Debswana lawyer, John Carr-Hartley of Armstrongs, has contended that the company could not have entered into such an agreement because management did not have the authority to make such a call. According Carry-Hartley, all procurements more than P100 million are authorized by the board.

On Thursday this week, at the close of cross-examination, Judge Tafa asked Attorney Kgosi Ngakaagae, who represents Infotrac and Carry-Hartley to make written submissions on the Tanquard Rule, and that the submissions be submitted simultaneously end of April.
The judgement is expected on June 16, but Tafa said there is possibility to deliver the judgement earlier than the aforementioned date.

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Why Katholo engaged private lawyers against State

16th May 2022
Katlholo

The Director General of the Directorate on Corruption and Economic Crime (DCEC) Tymon Katholo has revealed why he took a decision to engage private lawyers against the State. The DCEC boss engaged Monthe and Marumo Attorneys in his application to interdict the Directorate of Intelligence and Security (DIS) from accessing files and dockets in the custody of the corruption busting agency.

In his affidavit, Katholo says that by virtue of my appointment as the Director General of the DCEC, he is obliged to defend the administration and operational activities of the DCEC. He added that, “I have however been advised about a provision in the State Proceedings Act which grants the authority of public institution to undertake legal proceedings to the Attorney General.” Katholo contends that the provision is not absolute and the High Court may in the exercise of its original jurisdiction permit such, like in this circumstance authorise such proceedings to be instituted by the DCEC or its Director General.

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Dada to break Kwelagobe’s BDP long standing record

16th May 2022
Dada

Botswana Democratic Party (BDP) has gone through transformation over the years, with new faces coming and going, but some figures have become part and parcel of the furniture at Tsholetsa House. From founding in 1962, BDP has seen five leaders changing the baton during the party’s 60 years of existence. The party has successfully contested 12 general elections, albeit the outcome of the last polls were disputed in court.

While party splits were not synonymous with the BDP for the better part of its existence, the party suffered two splits in the last 12 years; the first in 2010 when a Barataphathi faction broke ranks to found the now defunct Botswana Movement for Democracy (BMD). The Barataphathi faction was in the main protesting the ill-treatment of then recently elected party secretary general, Gomolemo Motswaledi, who had been suspended ostensibly for challenging the authority of then president, Ian Khama.

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The Gulaam Husain Abdoola – Dubai sting detailed

16th May 2022
Gulaam Husain Abdoola

Mr Abdoola has known Mr. Uzair Razi for many years from the time he was a young boy. Uzair’s father, Mr Razi Ahmed, was the head of BCCI Bank in Botswana and “a very good man,” his close associates say.

Uzair and his wife went to settle in Dubai, the latter’s birthplace. He stayed in touch and was working for a real estate company owned by Mr. Sameer Lakhani. “Our understanding is that Uzair approached Mr. Abdoola to utilize their services for any property-related interests in Dubai. He did some work for Mr.Abdoola and others in the Botswana business community,” narrates a friend of Mr Abdoola.

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