The P110 million court battle involving mining giant, Debswana and Infotrac (Pty) Ltd, its erstwhile business intelligence partner, came to end on Wednesday. The Court of Appeal, after delaying a verdict due to questions around conflict of interest involving some members of the panel, final put the matter to rest.
Infotrac now has legal costs to settle. First their recusal application was dismissed with costs, secondly Debswana won its appeal with an order of costs against them.
The company wanted three judges presiding on the appeal case to recuse themselves, citing a conflict of interest relating to main character, Justice Lakhvinder Singh Walia’s involvement with the law firm that represented Debswana.
However, presiding South African judge Johan Froneman, Court of Appeal (CoA) Judge President Tebogo Tau and Walia dismissed the application on the basis that Mompoloki Motshidi, the company director, filed the application intentionally to influence the outcomes pending an appeal.
The recusal application was filed 21 days after the appeal was heard pending judgment which was set for the week after, where Infotrac requested for a different panel of judges to allocated to re-hear the appeal in due course.
However, CoA resolved that the complaint to Chief Justice (CJ) Terrance Rannowane on the 19th of July 2023 and report to Directorate on Corruption and Economic Crime (DCEC) on the 24th of July 2023 on Walia and Tau by Motshidi amounts to contempt of court in the form of scandalizing the court.
The three Justices concurred that there is no explanation as to why Motshidi approached the CJ and the Directorate before launching the recusal application.
They revealed that CJ refused to entertain the complaint on the basis that he had no competence to interfere in a matter that was still subjudice.
Infotrac’s grounds were that Walia was so intemperate in his questioning of its legal representative during the appeal hearing, which gives rise to a reasonable apprehension of bias on his part.
When Froneman dealt with that ground, he reasoned that any informed observer of CoA would know that dynamic and sometimes robust debate and interaction between the bench and counsel is the very stuff of an appeal hearing, as is the case in many other jurisdictions.
“Of course, that does not justify rude and unfair treatment of counsel, but neither does it prevent searching questioning of counsel’s arguments from the bench and for counsel to react appropriately thereto.”
Froneman stated that an observer would have known that the episode in court was not an instance of partiality, but part of the continuing debate in court between the bench and counsel and also thereafter, in the further deliberations between the judges themselves, before finally deciding the outcome of the appeal.
The second ground of recusal was the relationship between Walia JA and Debswana’s legal representative in the appeal and in the High Court created a similar apprehension of reasonable bias. Infotrac say it was alleged to flow from both the past and present professional contact between Walia and Carr-Hartley and the firm of attorneys (Armstrong), as well as the fact that Walia’s wife worked as a secretary for Mr. Carr-Hartley.
According to the ruling, an informed observer would have been aware that the supposed apprehension of bias arising from Walia’s historic relationship with Armstrong and Carr-Hartley had been laid to rest by CoA in the Mogale case.
According to the ruling, the complaint about the alleged involvement of Theresa Walia is similarly devoid of any merit.
“An informed observer would have been aware that she has been working as a secretary for Mr. Carr-Hartley at Armstrongs for some time. Any informed observer would not have considered it untoward for Walia to sit in matters involving her work as a legal secretary for Mr. Carr-Hartley.”
Froneman says that the reasons advanced in the founding affidavit of her likely involvement in sharing knowledge of the case with her husband beforehand and during the pandemic are simply fanciful and ridiculous.
“She was not involved in the appeal at all. It is because of Infotrac’s spurious allegations that she was forced to depose to an affidavit in the recusal application. It has manufactured a so-called further conflict of interest and cannot complain when it is debunked.”
According to the Coram, an informed observer would have attempted to influence the outcome of a pending appeal, especially after the hearing of the appeal in open court, by approaching institutions other than the court itself in an effort to thwart the outcome of the appeal.
“And he would not have made the outrageous and scandalous accusations, based on speculation and gossip. Both these actions come dangerously close to, if not actually constituting, contempt of court”.
I LOST NOT TO DEBSWANA BUT TO A JUDICIAL SYSTEM PLAGUED BY CONFLICTS OF INTEREST- MOTSHIDI
Motshidi, however, expressed his stand on the judgment over a statement. He submitted that he accused the judges of a conflict of interest, not out of spite or a desire to undermine the integrity of the judiciary, but out of a profound belief in the principles that Botswana’s legal system supposedly upholds fairness, impartiality, and justice.
“My case was never just about me, it was about representing the countless small individuals who have often found themselves pitted against a system that appears inherently biased against them. I firmly stand by my assertion that I lost not to Debswana, but to a judicial system plagued by conflicts of interest. It is a system where the scales of justice seem to tilt towards the powerful, where the voice of the common man often goes unheard, and where the promise of justice for all remains elusive am livid not because I lost, but because the very system that is meant to safeguard our rights and provide a fair and impartial forum for dispute resolution failed to address my concerns adequately. My concerns were totally ignored by the CoA judges. At some point, I felt like a cockroach seeking justice in a court of chickens. I implore every citizen who believes in the principles of justice and equality to reflect upon this case. It is a stark reminder that our judicial system is not infallible and that it is our duty as a society to hold it accountable when necessary. We must work towards a system that is truly impartial, where conflicts of interest are promptly addressed, and where justice is not a privilege reserved for the powerful but a right for all. I was fighting against a system that appears to prioritize its own interests above the very ideals it was established to uphold. My last words are that these judges should have recused themselves to ensure an untainted and equitable proceeding.”
FaR Property Company (FPC) Limited, a property investment company listed on the Botswana Stock Exchange, has recently announced its exceptional financial results for the year 2023. The company’s property asset value has risen to P1.47 billion, up from P1.42 billion in the previous year.
FPC has a diverse portfolio of properties, including retail, commercial, industrial, and residential properties in Botswana, South Africa, and Zambia. The company owns a total of 186 properties, generating rental revenues from various sectors. In 2023, the company recorded rental revenues of P11 million from residential properties, P62 million from industrial properties, and P89 million from commercial properties. Overall, the company’s total revenues increased by 9% to P153 million, while profit before tax increased by 22% to P136 million, and operating profit increased by 11% to P139 million.
One notable achievement for FPC is the low vacancy rate across its properties, which stands at only 6%. This is particularly impressive considering the challenging trading environment. The company attributes this success to effective lease management and the leasing of previously vacant properties in South Africa. FPC’s management expressed satisfaction with the results, highlighting the resilience of the company in the face of ongoing macroeconomic challenges.
The increase in profit before tax can be attributed to both an increase in income and effective control of operating expenses. FPC managed to achieve these results with fewer employees, demonstrating the company’s efficiency. The headline earnings per linked unit also saw an improvement, reaching 26.92 thebe, higher than the previous year.
Looking ahead, FPC remains confident in its competitiveness and growth prospects. The company possesses a substantial land bank, which it plans to develop strategically as opportunities arise. FPC aims for managed growth, focusing on consumer-driven developments and ensuring the presence of supportive tenants. By maintaining this approach, the company believes it can sustainably grow its property portfolio and remain competitive in the market.
In terms of the macroeconomic environment, FPC noted that inflation rates are decreasing towards the 3% to 6% range approved by the Bank of Botswana. This is positive news for the company, as it hopes for further decreases in interest rates. However, the fluctuating fuel prices, influenced by global events such as the war in Ukraine and oil output reductions by Russia and other Middle Eastern countries, continue to impact businesses, including some of FPC’s tenants.
FPC’s property portfolio includes notable assets such as a shopping mall in Francistown with Choppies Hyper as the anchor tenant, Borogo Mall located on the A33 main road near the Kazungula ferry crossing, and various industrial and commercial properties in Gaborone leased to Choppies, Senn Foods, and Clover Botswana. The company also owns a shopping mall in Mafikeng and Rustenburg in South Africa.
The majority of FPC’s properties, 85%, are located in Botswana, followed by 12% in South Africa and 3% in Zambia. With its strong financial performance, competitive position, and strategic land bank, FPC is well-positioned for continued growth and success in the property market.
The Botswana Power Corporation (BPC) has taken a significant step towards diversifying its energy mix by signing a power purchase agreement with Sekaname Energy for the production of power from coal bed methane in Mmashoro village. This agreement marks a major milestone for the energy sector in Botswana as the country transitions from a coal-fired power generation system to a new energy mix comprising coal, gas, solar, and wind.
The CEO of BPC, David Kgoboko, explained that the Power Purchase Agreement is for a 6MW coal bed methane proof of concept project to be developed around Mmashoro village. This project aligns with BPC’s strategic initiatives to increase the proportion of low-carbon power generation sources and renewable energy in the energy mix. The use of coal bed methane for power generation is an exciting development as it provides a hybrid solution with non-dispatchable sources of generation like solar PV. Without flexible base-load generation, the deployment of non-dispatchable solar PV generation would be limited.
Kgoboko emphasized that BPC is committed to enabling the development of a gas supply industry in Botswana. Sekaname Energy, along with other players in the coal bed methane exploration business, is a key and strategic partner for BPC. The successful development of a gas supply industry will enable the realization of a secure and sustainable energy mix for the country.
The Minister of Minerals & Energy, Lefoko Moagi, expressed his support for the initiative by the private sector to develop a gas industry in Botswana. The country has abundant coal reserves, and the government fully supports the commercial extraction of coal bed methane gas for power generation. The government guarantees that BPC will purchase the generated electricity at reasonable tariffs, providing cash flow to the developers and enabling them to raise equity and debt funding for gas extraction development.
Moagi highlighted the benefits of developing a gas supply industry, including diversified primary energy sources, economic diversification, import substitution, and employment creation. He commended Sekaname Energy for undertaking a pilot project to prove the commercial viability of extracting coal bed methane for power generation. If successful, this initiative would unlock the potential of a gas production industry in Botswana.
Sekaname Energy CEO, Peter Mmusi, emphasized the multiple uses of natural gas and its potential to uplift Botswana’s economy. In addition to power generation, natural gas can be used for gas-to-liquids, compressed natural gas, and fertilizer production. Mmusi revealed that Sekaname has already invested $57 million in exploration and infrastructure throughout its resource area. The company plans to spend another $10-15 million for the initial 6MW project and aims to invest over $500 million in the future for a 90MW power plant. Sekaname’s goal is to assist BPC in becoming a net exporter of power within the region and to contribute to Botswana’s transition to cleaner energy production.
In conclusion, the power purchase agreement between BPC and Sekaname Energy for the production of power from coal bed methane in Mmashoro village is a significant step towards diversifying Botswana’s energy mix. This project aligns with BPC’s strategic initiatives to increase the proportion of low-carbon power generation sources and renewable energy. The government’s support for the development of a gas supply industry and the commercial extraction of coal bed methane will bring numerous benefits to the country, including economic diversification, import substitution, and employment creation. With the potential to become a net exporter of power and a cleaner energy producer, Botswana is poised to make significant strides in its energy sector.
It is not clear as to when, but before taking a festive break in few weeks’ time UDC leaders would have convened to address the ongoing deadlock surrounding constituency allocation in the negotiations for the 2024 elections. The leaders, Duma Boko of the UDC, Mephato Reggie Reatile of the BPF, and Ndaba Gaolathe of the AP, are expected to meet and discuss critical matters and engage in dialogue regarding the contested constituencies.
The negotiations hit a stalemate when it came to allocating constituencies, prompting the need for the leaders to intervene. Representatives from the UDC, AP, and BPF were tasked with negotiating the allocation, with Dr. Patrick Molotsi and Dr. Philip Bulawa representing the UDC, and Dr. Phenyo Butale and Wynter Mmolotsi representing the AP.
The leaders’ meeting is crucial in resolving the contentious issue of constituency allocation, which has caused tension among UDC members and potential candidates for the 2024 elections. After reaching an agreement, the leaders will engage with the members of each constituency to gauge their opinions and ensure that the decisions made are favored by the rank and file. This approach aims to avoid unnecessary costs and conflicts during the general elections.
One of the main points of contention is the allocation of Molepolole South, which the BNF is adamant about obtaining. In the 2019 elections, the UDC was the runner-up in Molepolole South, securing the second position in seven out of eight wards. Other contested constituencies include Metsimotlhabe, Kgatleng East and West, Mmadinare, Francistown East, Shashe West, Boteti East, and Lerala Maunatlala.
The criteria used for constituency allocation have also become a point of dispute among the UDC member parties. The issue of incumbency is particularly contentious, as the criterion for constituency allocation suggests that current holders of UDC’s council and parliamentary seats should be given priority for re-election without undergoing primary elections. Disadvantaged parties argue that this approach limits democratic competition and hinders the emergence of potentially more capable candidates.
Another disputed criterion is the allocation based on the strength and popularity of a party in specific areas. Parties argue that this is a subjective criterion that leads to disputes and favoritism, as clear metrics for strength and visibility cannot be defined. The BNF, in particular, questions the demands of the new entrants, the BPF and AP, as they lack a traceable track record to support their high expectations.
The unity and cohesion of the UDC are at stake, with the BPF and AP expressing dissatisfaction and considering withdrawing from the negotiations. Therefore, it is crucial for the leaders to expedite their meeting and find a resolution to these disputes.
In the midst of these negotiations, the BNF has already secured 15 constituencies within the UDC coalition. While the negotiations are still ongoing, BNF Chairman Dr. Molotsi revealed that they have traditionally held these constituencies and are expecting to add more to their tally. The constituencies include Gantsi North, Gantsi South, Kgalagadi North, Kgalagadi South, Good Hope – Mmathethe, Kanye North, Kanye South, Lobatse, Molepolole North, Gaborone South, Gaborone North, Gaborone Bonnignton North, Takatokwane, Letlhakeng, and Tlokweng.
The resolution of the contested constituencies will test the ability of the UDC to present a united front in the 2024 National Elections will depend on the decisions made by the three leaders. It is essential for them to demonstrate maturity and astuteness in resolving the constituency allocation deadlock and ensuring the cohesion of the UDC.