* Thekiso seeks liquidation of Marsland’s Manor Squad Services
* Wants court to act fast because Marsland is “dissipating” money in Manor Squad account
* Marsland queries Thekiso’s locus standi
In an effort to recover more than R105 million (about P80 million) owed to pensioners in Botswana, the Liquidator of Capital Management Botswana (CMB), Kopanang Thekiso, has filed an urgent application before the Johannesburg High Court in South African to have Manor Squad Services liquidated.
Manor Squad Services is owned by former director of Capital Management Botswana, Tim Marsland, who has hit back by challenging Thekiso’s locus standi in the matter and to stop the liquidation sought.
In his application, Thekiso states that Manor Squad owes CMB and its subsidiary CMBF1 (which are identified as Consolidated Estate in court papers) more than R105 million. The money forms part of funds invested by the Botswana Public Officers Pension Fund (BPOPF) in a private equity fund named the Botswana Opportunities Partnership (BOP), an investment vehicle created by CMB in partnership with BPOPF.
“The only asset held by the Consolidated Estate in South Africa is the loan due to and owing to CMBF1 in an amount of approximately R105 million,” Thekiso says in his founding affidavit.
The debt, he deposes, arises from a loan made by CMBF1 to Manor Squad pursuant to the terms of a services agreement concluded between CMBF1 and Manor Squad in 2016.
Thekiso says the sole shareholder and director of manor Squad, Timothy Marsland, who is also a director of CMB and CMBF1 at the time of their liquidation, unlawfully diverted tens of millions of Botswana Pula from the Consolidated Estate into Manor Squad and has been responsible for unlawful dissipation of assets belonging to Manor Squad to such an extent that it is unable to satisfy the Consolidated Estate’s claim.
According to Thekiso, the origin of the loan was funds intended for a specific investment by BPOPF that were unlawfully diverted from Botswana to Manor Squad in South Africa via electronic bank transfers with purported interest payments of millions of rands laundered to Marsland and others through legitimate and illegitimate front businesses in South Africa and Botswana.
Among others, reliefs sought by Thekiso are that Manor Squad be placed under final winding-up and by the Master of the High Court appointing a liquidator. Alternatively, that a temporary judgment calling upon all interested parties to appear on a date to be determine by the High Court and to show cause why Manor Squad should not be placed under final winding up should be made.
Thekiso also wants the court to appoint a commissioner to conduct an enquiry into the trade, dealings, affairs and property of Manor Squad. However, the enquiry should not commence before the Master of the Johannesburg High Court appoints the liquidator.
The reason why he wants the Master of the South African High Court to appoint a liquidator with immediate effect is that assets of Manor Squad may be dissipated if a liquidator does not take charge of them and the commissioner does not proceed with an enquiry immediately, he argues. But Thekiso accuses the Master of the Johannesburg High Court of obstruction. “The Master has been unnecessarily dilatory and obstructive in the process of trying to obtain my letters of authority,” Thekiso asserts.
He says his attorneys have engaged the Master since February this year about what security would be acceptable but the issue is yet to be resolved. The result is that he, Thekiso, decided to approach the Johannesburg High Court on urgency. “This process has gone on for in excess of six months and I still do not have the letters of the authority,” he charges. “I am left with no option but to request the Honourable Court for assistance.”
He says Manor Squad does not have a bank account and conducts its business through the account of an attorney/agent and possibly other third parties. “I am advised that this not only renders Manor Squad commercially insolvent but may constitute illegal conduct on the part of Manor Squad and these parties,” Thekiso deposes. “To the best of my knowledge (the company) is also factually insolvent in that its liabilities exceed its assets and it is unable to pay its debts.”
He informs the court that lawyers have been instructed to draft particulars of claim for a civil damages suit in Botswana against Marsland and his fellow former director of CMB and CMBF1. “The Motswana (is) Mr Okaile.” According to Thekiso, First National Bank has also elected to exercise its contractual right to terminate its banking relationship with Manor Squad due to the associated reputational and business risks”.
He (Thekiso) also became aware that “Mr Marsland had requested Messrs. McIntyre and Neill to transfer funds out of the Manor Squad bank account to pay his legal representatives”, he deposes. “This is further evidence that Marsland treats the funds of Manor Squad as his personal slush funds and that Messrs. McIntyre and Neill will continue to allow the dissipation of further Manor Squad funds at the instance of Mr Marsland to the prejudice of the estate, which causes severe prejudice to creditors of Manor Squad, especially to the Consolidated Estate.”
Meanwhile, lawyers acting for Marsland want Thekiso to stop the liquidation. In a strongly worded letter, Bernard L. Du Plessis Inc. urges Thekiso’s lawyers, Armstrong Attorneys, to “withdraw your client’s purported urgent application, with each party to (if the offer is accepted at this juncture) pay their own costs”.”
They says the application before the Johannesburg High Court should be withdrawn and cite Gaborone High Court’s Justice Boipuso Tshweneyage’s judgment that recently set aside charges against Marsland and that he be released from Modderbee Correctional Facilities. “The effect of the order (Tshweneyagae’s judgement) is that Mr Marsland is no longer incarcerated at Modderbee Correctional Facilities and had been so released since Friday 3 September 2021,” Marsland’s lawyers wrote. Your client’s alleged grounds for urgency have now become moot.”
They say if Marsland had any intention of acting in the manner that Thekiso alleges without factual basis, he would first have secured dissipation of the assets of Manor Squad before instructing them to engage with Armstrong Attorneys.
“It is denied that our client would have acted in the manner as alleged by your client,” Marsland’s lawyers wrote. “We point out that it has been found by the Botswana High Court that the charges lack any merit and (were) in fact irrational. Mr Marsland has been vindicated in respect of what has been alleged from the outset and he is intent on taking such steps, in Botswana, as may be necessary to undo the contrived process in respect of both CMB and CMBF1.”
According to them, Thekiso “lacks the necessary locus standi (the right to bring an action or appear in court) to seek the winding up of Manor Squad). “In the aforesaid premises, we invite your client to withdraw his reckless application, which also constitutes an abuse of the process of the court,” they argued in the letter. “Mr Marsland has also instructed us to extend an olive branch to your client as well as other powers-that-be in Botswana (for) a settlement of all matters.”