Debswana P110 million suit could be decided on Turquand Rule
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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DCEC granted warrant to arrest Khama twins
The Directorate on Corruption and Economic Crime (DCEC) has been granted permission to apprehend the former Minister of Environment, Wildlife and Tourism, Tshekedi Khama, and his twin brother Anthony Khama.
Information gathered by this publication suggests that the DCEC is actively searching for the Khama brothers, this is in connection with events that transpired whilst Tshekedi was Minister of Environment. The duo is currently in exile in South Africa together with their elder brother, and former President Lt Gen Ian Khama.
Approximately two weeks ago, the corruption-busting agency discreetly filed for an arrest warrant that was approved by the Broadhurst Magistrate Court for the two to be taken into custody, according to a highly placed source within the government enclave.
DCEC is also said to have filed an affidavit signed by a high-ranking officer known to this publication. Reports indicate that after being presented with details of the case, the Broadhurst magistrate issued the agency an arrest warrant.
It is also believed that the agency has been conducting extensive investigations into the supposed suspects for quite some time. Furthermore, Weekend Post has it on good word that the DCEC has been looking for methods to summon the two for questioning but has been unsuccessful.
According to unconfirmed reports, DCEC met with attorney Victor Ramalepa, who refused to accept the summons, saying that he is not their attorney. Furthermore, it is believed that DCEC has enlisted the assistance of the Botswana Police Service (BPS) in flagging the suspects’ names in the International Criminal Police Organisation INTERPOL.
Responding toÂ WeekendPostÂ enquiries, DCEC spokesperson Lentswe Motshoganetsi said, â€śI am not in good position to confirm or deny the allegation,â€ť adding that such allegations may fall within the operational purview of the DCEC.
When contacted for comment, Ramalepa briefly stated that he is unaware of the purported arrest warrant. â€śI know nothing about the warrant and I havenâ€™t been served with anything,â€ť he said.
Meanwhile, former president Lt Gen Ian Khama recently issued a statement stating that DIS is intensifying the harassment and intimidation of him, family, friends and office employees.
â€śIt is reprehensible for state officials and agencies to abuse government resources to terrorise their own citizens for personal gain,â€ť said the former president in a statement.
He also stated that his brother TKâ€™s staff and security were ordered to falsely implicate him. â€śTheir desperate tactics will never work, it only serves to motivate me more to pursue regime change and free Botswana from tyranny,â€ť he said
This comes after the corruption busting agency wants to interview the alleged suspects as they are still hiding in South Africa since last year.
Despite the hostility between government and Khama family going unabated, last month, Masisi extended an olive branch to Khama in political rally, indicating that he hopes the two of them settle their differences, of which the former responded by welcoming the gesture.
Khama further said his brother, Tshekedi, will facilitate the reconciliation of his behalf. Many have indicated that Masisi did not say what he said in good faith, and was only scoring political brownies since he was in Khamaâ€™s territory in Shoshong.
DCECâ€™s Tshepo Pilane still has his mojo
Tshepo Pilane silenced his critics after being named the head of the Directorate on Corruption and Economic Crime (DCEC) in May of last year and served his opponents humble pie. Many believed he would only last for a month, but almost a year later, he is still standing.
Pilane, a trained soldier whose appointment surprised both the general public and some officers within the DCEC walls, has never glanced back in his duty to steer the DCEC ship forward.
It is alleged that immediately after his appointment the man embarked on a nation-wide trip touring the DCEC offices across the country in order to confirm and reaffirm the DCECâ€™s mandate. Sources from inside the DCEC claim that Pilane won the hearts of many DCEC employees due to his humility and plain message; â€śpeople at the top of the DCEC will come and go but the mandate of the DCEC remains relevant and unchanged.â€ť
Pilane was appointed the Acting DCEC Director General at a time when the organisation was undergoing turbulence through court proceedings in which the suspended Director General Tymon Katlholo had interdicted the Directorate of Intelligence and Security (DIS) from accessing the DCEC premises. At the time, the DIS had raided the DCEC offices in the absence of Katlholo claiming to be looking for high profile corruption cases allegedly held by Katlholo.
At the time Pilane was Head of the DCEC Intelligence Division holding the position of Senior Assistant Director General reporting directly to the Deputy Director General Operations Ms Priscilla Israel. Contrary to his detractors, Pilane who is a reserved and humble person by nature won the support and backing of many DCEC officers due to his unassuming nature.
In a recent questionnaire sent to the DCEC regarding Pilaneâ€™s term in office, the DCEC was resolute on its commitment towards the fight against corruption. When quizzed on allegations of rife corruption since he took over, Pilane through his Public Relations (PR) office stated that the corruption landscape in Botswana remains unchanged as the DCEC continues to receive reports on allegations of corruption with sectors such as procurement (tenders and supplies), Transport (licensing and certificates), and land (dubious allocation and collusion) still leading issues reported. This trend has been consistence in the DCEC database for more than 10 years.
When further quizzed on accusations that suggest that due to the infighting at the agency, particularly at the top management, Investigations of cases has dropped significantly the DCEC claimed ignorance to the matter, stating that they are not aware of any â€śinfightsâ€ť at the DCEC â€śat the top managementâ€ť, further stating that, investigations of cases has increased significantly, contrary to the allegations raised. â€śThe DCEC is currently seeking new ways of expediting the investigations in order to fast track its enforcement role,â€ť said the DCEC Head of Public Relations Lentswe Motshoganetsi. He further stated that the DCEC is in pursuit of high profile cases involving money and assets valued over P900 million. Three companies are involved in the scandal and two cases have already been committed to court while on one, investigations are about to be completed.
When WeekendPost inquired about Pilaneâ€™s roadmap, the DCEC stated that in the past, anti-corruption interventions were reactive, particularly in dealing with national projects that involve large sums of money. It was further started that in most instances investigating such matters takes a long time and in most instances, the money looted form Government in never recovered. As a result, the DCEC has taken a deliberate stance to attach its officers from the Corruption Prevention Division to be part of the implementation of these projects before, during, and after implementation.
The DCEC cited the Economic Stimulus Programme which, although meant to grow the economy and uplift Batswana from poverty, yielded incidents of corruption and poor workmanship. To date, the DCEC is still grappling with cases as some projects were not done, or were completed with defects beyond repair. Currently the DCEC is involved at the Ministry of Education conducting project risk management in the Multiple Path Ways Program at Moeng College and Maun Senior School. This intervention will spread to other sectors of the economy as part of the DCECâ€™s corruption prevention strategy.
Of recent, the DCEC has been in the media for all the wrong reasons following leakage of high profile cases and allegations claiming that the executive management is at war with each other more particularly with some within the agency harbouring ambitions to dethrone Pilane from the Directorship.
Although the infighting was denied by Pilaneâ€™s Office, he acknowledged that leakage of information is a problem across Government and stated that it is a pain at the DCEC. He however stated that Staff has been cautioned against leakage of investigation information and that they have roped in the Botswana Police to assist in investigating incidents of leakage. He further stated that they have increased continuous vetting and lifestyle audits for DCEC employees in order to enforce discipline.
Pilaneâ€™s term comes to an end in May 2023 after serving the DCEC for a year on acting basis. It will be in the public interest to see who will be given the baton to continue the anti-corruption journey if Pilaneâ€™s contract is not renewed. The DCEC has seen arrival and departure of Director Generals having alternated the top seat five times in less than seven years.
Botswana firms ICC support amid arrest warrant for Russian President
The Parliament is set to discuss proposed amendments to the laws related to the International Court Court (ICC). This development coincides with reports that the ICC has issued an arrest warrant for Russian President Vladimir Putin for his alleged role in the conflict in Ukraine.
It is not clear if this is a coincidence. For the fourth time, last year Botswana voted against Russia during the UN General Assembly’s condemnation of Russia’s attack on Ukraine.
The country’s continued support for the ICC is expected to irk other African countries that are still questioning the credibility of the ICC and those have also sworn alligence to Russia.
It has been reported that the Minister of Justice, Ronald Shamukuni, is expected to table the Bill regarding the amendments to the laws concerning the ICC in the Parliament soon.
The Bill seeks to criminalize various international crimes, including genocide, war crimes, and aggression. It also proposes to repeal and replace the 2017 Rome Statute of the ICC with amendments.
The latest Government Gazette indicated that the 2017 Act has some legal and constitutional implications. The proposed amendments seek to address these issues.Therefore, the Bill seeks to replace the 2017 Act with a new statute that will retain some of the provisions that do not conflict with Botswana’s Constitution.
The Bill aims to ensure that the obligations of Botswana as a State Party to the Rome Statute of the ICC do not conflict with the country’s Constitution.
The proposed Act will include addition of the crime of aggression which was not there in the 2017 Act. The proposed Act will remove clauses that conflict with Botswanaâ€™s Constitution such as article 17 of the Rome Statute of the ICC which provides that official capacity as Head of State shall in no case exempt a person from criminal responsibility under the ICC Statute.
The import of this provision (which the new law seeks to repeal) is that Botswana Courts will be constrained by section 41 of the Constitution to try a sitting President but the International Criminal Court will not be so constrained.
The proposed Act will also result in the amendment to the extradition Act which will provide for instances where Botswana is unable to extradite, for the Director of Public Prosecution (DPP) to instead prosecute on behalf of the foreign country (ICC) where it is determined that there is sufficient evidence to prosecute and sharing of suspected proceeds of crime and confiscated property with other countries.
â€śIn this regard, the amendment to the Mutual Assistant in Criminal Matters Act empowers the DPP to enter into agreements for the reciprocal sharing of with a competent authority in a foreign country,â€ť reads the note in part.
The Bill also includes a clause dealing with conspiracy which provides that a person who conspires in Botswana to commit an offence, in or outside the territory of Botswana, or who conspires outside Botswana to commit an offence in Botswana commits an offence and is liable to the same penalty as the penalty for the actual offence.
Other provisions of the Bill include those relating to superior orders not being a defence as well as the responsibilities of commanders and other supervisors. Furthermore, the Bill deals with issues such as jurisdiction which allows for proceedings to be instituted against a person under certain circumstances, where an act of constituting an offence under the Bill is committed by any person outside the territory of Botswana.
The Bill also provides that the limitations on certain criminal offences will not be applicable to the offences under the Bill. This means that the Prescriptions Act and other statutory limitations will not be applicable to the offences under the Bill. Other provisions of the Bill include the establishment of regulations and the powers of the Minister to make amendments to laws.
The latest developments involving the ICC have raised concerns about Botswana’s continued support for the court. Some of the countries that are critical of the court include Uganda and Kenya. They believe that the court only targets African countries for its alleged involvement in war crimes. In 2016, South Africa decided to withdraw from the ICC. South Africa was the second African nation to withdraw from the court after Burundi.
The decision by South Africa followed a controversy in 2015 when Sudan’s President Omar Al-Bashir was invited to the country despite an ICC warrant for his arrest. Yoweri Museveni, the Ugandan President, at that time commended South Africa for its decision to withdraw from the court.