- Widow of the late Professor “TK” Takirambude haunts PEEPA and its illegal advisor
- Fired CEO Moumakwa and former Board chair Kgatlwane fuss about numbers
The Board of Directors of the Public Enterprises Evaluation and Privatisation Agency (PEEPA) and the organisation’s interim CEO may have taken crucial decisions in their fight against former CEO Ezekiel Moumakwa without a board resolution, and also under the advice of a disbarred attorney, The Business Weekly & Review has established.
If this is what happened, it would be in contravention to the PEEPA constitution. Further, the decisions may have followed the advice of a legal advisor/company secretary who had been disbarred by the Law Society of Botswana for defrauding a client of money.
Inspite of this, Bongi Radipati still serves as the legal advisor and company secretary of PEEPA. The Business Weekly & Review has seen a document from the Law Society of Botswana (LSB) Chairman’s Annual Report 2020. According to the document, the Disciplinary Committee of LSB found attorney Bongi Radipati guilty of serious misconduct for misappropriation of trust account funds and failure to account to the client. The Disciplinary Committee consequently recommended to LSB that an application be made for Radipati to be disbarred and LSB accordingly filed an application to that end. The claimant was the surviving spouse of the late Professor Peter Takirambude who alleged that Radipati, an attorney then in private practice, had misappropriated P246 457 held in a trust for Pro Takirambude.
Radiapti is currently employed by PEEPA and is key in giving advice for decisions taken by the quasi-government institution, including its ongoing fight with its former CEO Moumakwa.
Asked whether they were aware that their legal officer has been disbarred by LSB, PEEPA’s Corporate Communications Manager, Mosikare Mogegeh, only thanked The Business Weekly & Review for bringing the matter to PEEPA’s attention. “PEEPA has begun due process in accordance with its procedures and policies and will take appropriate action where required,” he responded.
The matter of PEEPA and Moumakwa is currently before the Industrial Court in two disputes. In one, Moumakwa maintains that he was unfairly dismissed from his position as CEO. In the other dispute, he says PEEPA is unfairly withholding his terminal benefits, amounting to over P400 000.
After Moumakwa was dismissed on 22 October 2019, he filed an urgent application for unfair withholding of terminal benefits on 23 December 2019. However, the dispute was declared not urgent and then referred for hearing through the normal course. Further to that, Moumakwa sought permission from the Industrial Court to file a statement of case which incorporates his claims of withheld wages and unfair dismissal which he referred to mediation. However, he failed to file the statement of case within 30 days (after mediation failure) as instructed by the court and then applied for condonation, which PEEPA opposed.
But in the interests of justice, Industrial Court judge Tapiwa Marumo granted Moumakwa permission to file the statement on 9 March 2021.
Moumakwa proceeded to file his statement of unfair dismissal which was to be incorporated into the withheld wages dispute.
In the statement, Moumakwa seeks to challenge his unfair dismissal on several grounds. First, he alleges that PEEPA applied conditions of service that were at the time not applicable to him as CEO and so the organization failed to follow procedure. According to his argument, the PEEPA Board violated the PEEPA Constitution, especially Clause 17.2 which stipulates that the terms and conditions of the CEO shall be developed by the Board and sanctioned by the Minister. Moumakwa argues that no such terms and conditions were developed. He avers that he was found guilty of willful disobedience, a charge that would not normally be levelled against a CEO.
He say he was denied the right to be represented at the hearing because he was restricted to the choice of a co-worker, and none of the employees of PEEPA could be said to be fit for that definition. Further, Moumakwa maintains that the minister at the time decided on his dismissal without giving him a hearing as he chose to ignore the fact that Moumakwa was not well and not fit to respond within the time provided. In determining Moumakwa’s dismissal, the minister took into account factors that were not raised at the disciplinary hearing and an investigation report that Moumakwa says he did not contribute to.
In the case, Moumakwa was dismissed by then Minister of Presidential Affairs, Governance and Public Administration, Nonofo Molefi , in October 2019 after the PEEPA Board, chaired by Tiny Kgatlwane, recommended his sacking on the basis that he was insurbodinate and acted in a manner that contravened the terms and conditions of his employment. After Moumakwa filed his statement on unfair dismissal, PEEPA responded but did not at the time have a Board resolution to respond. On 14 May 2021, Moumakwa argued that PEEPA needed a board resolution to respond to his unfair dismissal statement. In his argument, as a corporate entity PEEPA needed a board resolution for that undertaking, which can be said to be a formal statement of assurance. To demonstrate the extent to which PEEPA needed a board resolution, Moumakwa stated that the PEEPA chairperson, Tiny Kgatlwane, wrote to him (when he was CEO) to park the company car without a resolution and also suspended him without a board resolution. He argued that Kgatlwane as the Board chair did not posses independent executive powers such as suspending the CEO and even dismissing him.
Further, Moumakwa says in his court documents that the person under whose signature PEEPA documents are filed before court, Ishmael Joseph, has been Acting CEO since Moumakwa’s dismissal and has a direct interest in fully assuming the position. According to the documents, between November 2017 and January 2019, PEEPA was without a functional board. This was after expiry of the terms of Tally Tshekiso, Kumbulani Munamati, Professor Happy Siphambe, Patience Motswagole, Victoria Lekoma, Goitseone Masalakatane and Dr Kolaatamo Malefho. During this period, Moumakwa’s papers state, only one person, Gideon Mmolawa, remained a nominated and appointed member of the Board. His term ran from March 2016 to February 2020.
Section 12.3 of the PEEPA Constitution provides that the number of the directors shall be not less than seven or more than 12, which means that the number of persons nominated to the PEEPA Board ranging between one and six do not legally constitute a body entity called PEEPA and cannot execute functions of the PEEPA Board as per the PEEPA Constitution. Equally, should the numbers of nominated board directors exceed 12, it would also be unconstitutional. In January 2019, six people were appointed to the PEEPA Board. They were Tiny Kgatlwane, Patience Motswagole, Tefo Goitseone Bogosi, Gabolekwe Lesole Tlogelane, Olebeng Ngwakwena and Motlhware Masisi, which made the directors seven in total, to satisfy the number required by the PEEPA Constitution. However, Mmolawa’s term expired in February 2020 but the remaining six continued to conduct themselves as if they were a functional Board. After Moumakwa argued that the Board needed a resolution, the remaining PEEPA board members made one, which Moumakwa also questioned based on the composition of the board which had less than seven directors.
On 5 August 2021, Moumakwa wrote to the Permanent Secretary to the President and the Attorney General seeking clarity as to the current composition of the PEEPA Board and their terms of engagement. The Attorney General’s Office responded on 9 Septemder 2021, saying it was unable to provide such information because cabinet records are secretive in nature. Further, the Attorney General directed Moumakwa to seek the information from PEEPA since it is its custodian. In papers filed before court, Moumakwa claims that he wants to ascertain the legality of the PEEPA Board and the resolutions it made, which are crucial to his case. PEEPA falls under the Ministry of Presidential Affairs and its Board is appointed by the Minister of Presidential Affairs.
The Business Weekly & Review wrote to PEEPA Board Chair Kgatlwane earlier this year to seek to understand why the Board was making resolutions despite being non-compliant with Clause 12.3 of the organisation’s constitution. In response, Kgatlwane wrote: “Clause12.3 of the PEEPA Constitution gives the minimum number of Board members as seven and the maximum number as 12, to constitute the PEEPA Board. Nowhere does it say that when that number is below seven the Board shall not operate legally.
“Clause 16.3 of the PEEPA Constitution, which is the relevant provision, indicates what number of Board members must be present before the Board can take a decision. That number is half of seven, which for present purposes is four. This clause does not say that for the Board to take decisions all seven Board members must be present.”
In response to a quest for an update this week, Corporate Communications Manager Mogegeh said their hands were tied since the matter is a dispute before court.