Kebonang, Collins Newman and others
Eventually the Bank of Botswana vs EBC Guernsey saga rolls into Justice Zein Kebonang’s court this Wednesday morning after substantial ringside legal wrestling and wrangling. This week before Justice Zein Kebonang will be aetsit down to hear arguments in perhaps the most important case in the history of not just the Bank of Botswana but one of the foremost corporate legal teams in the country Collins Newman & Company. The case includes the who of who of the legal and financial sectors. The Business Weekly & Review runs the ruler through the main and minor characters in this epic tale.
Judges do not come more corporate than Justice Kebonang, and perhaps no case comes more gift-wrapped for a judge like Kebonang than this. Kebonang comes to the bench not from the litigation side of the judicial sector but rather the academic side. Until recently when he was appointed to the bench, Kebonang was Chairman of the Competition Commission. Kebonang holds a Law Doctorate from the Australian National University, a Masters Degree from Harvard Law School and a first degree from the University of Botswana. He has taught law at UB, specifically Taxation, Company Law, Administrative Law, Legal Ethics and Contract, as well as at the University of Pretoria. He has taught comparative tax administration at the Southern African Tax Institute, University of Pretoria and has been a visiting Research Fellow with the International Tax Program at Harvard Law School. His research interests are varied and he has published extensively in reputable journals. While chairman of the Competition Authority the organ dealt with some of the important matters in the economic space such as the consolidation in the agri-business sector.
At the last hearing of the case Justice Kebonang intimated his desire to ensure the case gets heard on the 16th Sepetember. , having spent quite some time dealing with the matters around the main case itself that both legal teams wanted dealt with. The issues raised in this case, one of major ones Kebonang will deal with in this early phase of his term, will surely be of interest to a man accustomed to scrutinizing corporate legal matters.. It may never come to it, but if it does, the case will require an almost surgical dissection of the veracity of documents filed in Court and also the Bank of Botswana’s management of the defunct Kingdom Bank.
Ultimately this case is about whether the no-nonsense Governor and her team had their eyes of the ball when they wound up Kingdom Bank. The true extent of the Bank of Botswana’s role in the financial turmoil of Kingdom Bank will may have to be fully explored, together with an analysis of whether the judgment against Bank of Botswana ought to be set asideshould be dismissed.
The series of events leading up to and after, the collapse of the ill-fated Kingdom Bank whilst under a red flag of the regulatory bank will be an issue for the Court to determine
The Bank of Botswana Act, that gives BoB the overall duty to promote liquidity and solvency in the financial system, that places the primary objective of the Bank of Botswana as “first and foremost to promote and maintain monetary stability, an efficient payments mechanism and the liquidity, solvency and proper functioning of a soundly based monetary, credit and financial system in Botswana”. The Bank of Botswana has the oversight mechanisms in respect of and authority over all banks in Botswana to safe guard their financial liquidity, therefore, insiders say, that BoB would have known the true state of Kingdom Bank’s financial status. That Kingdom Bank, under a more rigorous regulatory regime would not be in the state it is in today, is only a part of what will need to be determined by the Court.
THE LEGAL FIRMS
Collins Newman & Company
Collins Newman & Company’s role as the legal advisor to Bank of Botswana will be central to the this case. Led by Managing Partner Parks Tafa, senior partner Rizwan Desai and partner Neill Armstrong, the law firm is both a major corporate legal player as well as a politically connected institution. According to its website the law firm has dealt with transactions ranging from complex mergers and acquisitions, mining, banking, finance, telecommunications and infrastructure work to mainstream corporate and commercial activities.
It also has undertaken a large share of listings, debt-capital markets work and other mandates, and remains the preferred firm for cross-border transactions and foreign direct investments, states the firm’s publicity material. Collins Newman are not just Bank of Botswana legal advisors, they have also been legal advisors to the Government of Botswana, and have been legal representatives for major institutions among them Botswana Power Corporation, Debswana, BCL Limited, Botswana Ash, Botswana Railways, Botswana Meat Commission, Botswana Telecommunications Corporation, Botswana Oil, Botswana Tourism Organisation and University of Botswana. On the political landscape Tafa and his team are legal advisors for none other than the President Ian Khama himself.
The case, like all major cases, has metamorphosed from a simple case of whether Bank of Botswana delivered its mandate properly during the tumultuous winding up of Kingdom Bank, to something more insidious. Now the very credibility of one of the country’s major law firms is being put to question. The allegations of forgery by an expert against the law firm will put a spotlight on this case even more than before, allegations which Collins Newman & Company have been quick to tackle and refute
MINCHIN & KELLY
The law firm is not just one of the most recognizable names in the legal fraternity but is one of the oldest law firms in the country, established in 1890. It has been a major player in the corporate legal world since then. Minchin & Kelly is led by partners and veteran legal minds Terrence Dambe (Managing), Thabiso Tafila (Partner) and John Griffiths (Partner).
The firm’s primary areas of practice include corporate and commercial, banking and finance, projects, commercial litigation, insolvency, labour law and property. Clients include financial institutions, national utility companies, global corporations, FTSE 100 and Fortune 500 companies, the Botswana Government, individuals and various other mid to large local companies, states the firm’s corporate profile.
It has dealt in major work, having developed expertise in the major areas of corporate legal work, among them Banking and Finance, Corporate and Commercial, Insurance, Mining, Minerals and Energy. They have advised on major transactions among them, on the listing of the Standard Chartered Bank Botswana Limited BWP5 billion Debt Issuance Programme on the Botswana Stock Exchange, the Morupule Colliery in the project finance negotiations for the Morupule Colliery expansion, Botswana Power Corporation regarding a coal supply agreement with Morupule Colliery Limited for the supply of coal to the new Morupule Power Station and being leading counsel in negotiating a water supply agreement for the new Morupule Power Station and Morupule Colliery.
John Griffiths – Partner – Minchin & Kelly
The law firm has thrown their Head of Civil Litigation, John Griffiths, into this case. According to the firm’ss profile he has more than 29 years’ experience in a wide variety of legal matters including corporate and commercial, construction, mining, defamation, medical negligence, personal damages and various types of insurance litigation. He joined Minchin & Kelly in 1987 and in 1989 became a partner. “He has specialist knowledge in insurance law and advises numerous insurance companies in Botswana including the Botswana Government insurance schemes, Santam, Regent Insurance and Mutual & Federal”. Griffiths has advised in mining litigation for clients including BCL Mine, African Diamonds and Lucara. Griffiths’ position would be to defend the granting of default judgment in favour of his clients EBC Guernsey, In that way he would therefore seek to show how the BoB through their lawyers failed to meet the time limits set by the High Court to file a response to his client’s original suit. However Griffiths inevitably will have to, if the case takes that turn, look back at the role of Bank of Botswana in the wounding up of Kingdom Bank, if anything as useful background to buttress his overall legal position. The tussle will end up at the most point of them all, whether BoB filed its papers in time and whether they were legitimate. The forgery allegations, which EBC Guernsey will make, will be central to Griffiths’ work before Kebonang.
Dineo Mpho-Makati – Senior Associate – Collins Newman & Company
The Collins Newman & Company Senior Associate heads the legal team charged with extricating the law firm and the regulator from the clutches of EBC Guernsey. Mpho-Makati, after the partners themselves, is in the second tier of Associates and her appointment to lead this case shows the seriousness with which the law firm takes the case. According information from the law firm Mpho-Makati joined the firm in August 2007, five years after being admitted into legal practice. “She has established herself as a seasoned and consummate dispute resolution practitioner dealing with all aspects of civil, commercial and labour dispute resolution. Her areas of expertise are Employment and Labour law, Civil and Commercial Dispute Resolution, the law of Defamation and Administrative Law” states the law firm website. She has established an extensive practice with clientele ranging from Parastatals, Banks, Private entities as well as high profile individuals including Cabinet Ministers and Judges of the High Court of Botswana, states her official profile.
To get her way Mpho-Makati will have to convince the court that the default judgment against BoB was irregular. Central to the BoB legal team is the assertion that the Court Registrar did not have the power to grant the default judgment. However if Kebonang is to accept that position, before that, Mpho-Makati and her team would have to come round to arguing that the BoB replying papers were submitted on time, a matter that has become central to the whole case. She will be charged with proving that the papers were legitimate a position Minchin & Kelly would be opposed to.
Jayne Cross – Associate – Minchin & Kelly
Jayne Cross is part of the litigation team at Minchin & Kelly with a specific interest in insurance related claims. She cut her teeth in South Africa, having her attained her qualification in the southern African country in 2008. She joined the law firm in 2010. She has advised and represented international companies in contractual breach claims, on interpretation of contracts, all areas of corporate law which are related to this case. During the house-keeping session last week, Cross did most of the talking while Griffiths listened intently.
Bokani Machinya – Associate – Collins Newman & Company
Through the sheer evolution of this case, the Collins Newman & Company Associate, who started off as the legal official assigned the Bank of Botswana matter, has turned into its potential subject. Machinya is said to be the link between the High Court and the law firm in this matter,. The default judgment is said to have been granted on the 15th of July. Collins Newman & Company, maintain that their papers were submitted on time. They argue that they submitted their papers on the 19th of June, more than a month before the default judgment. According to the source, High Court Assistant Registrar, Bafi Nlanda is said to have sent a letter on the 27th June vouching for the authenticity of the submission by Collins Newman & Company. The letter, according to sources, was written immediately after the High Court official had held a meeting with Ms Machinya. Machinya is a senior member of the legal team, and the case will test the resolve of the company, as the allegations leveled against her are serious.
“She initially began her career as a litigator and after joining Collins Newman & Co gained experience in corporate commercial/commercial work, specialising in all aspects of transactional work including, due diligence, mergers and acquisitions, capital markets and listings on the Botswana Stock Exchange” states her official company profile.
MAN IN THE MIDDLE
BAFI NLANDA – ASSISTANT REGISTRAR
Nlanda has become central to the arguments between the two parties. The default judgment granted against Bank of Botswana on the basis that the central bank failed to submit papers signifying BoB’s intention to defend the EBC Guernsey’s suit over the company’s losses resulting from the alleged mismanagement in the winding up of Kingdom Bank. The default judgment is said to have been granted on the 15th of July. Collins Newman & Company, maintain that their papers were submitted on time. They argue that they submitted their papers on the 19th of June, more than a month before the default judgment. According to the source, High Court Assistant Registrar, Bafi Nlanda is said to have sent a letter on the 27th June vouching for the authenticity of the submission by Collins Newman & Company. While EBC Guernsey argues that BoB did not submit its replying papers on time, Collins Newman has brought a letter of communication from Nlanda purportedly confirming the authenticity of the submission by BoB. The letter, The Business Weekly & Review investigations have revealed, was written immediately after the High Court official had held a meeting with Ms. Machinya, a lawyer at Collins Newman & Company.
Gerhard Cloete – Handwriting Expert
In an affidavit filed before the court, South African veteran handwriting expert, Gerhard Cloete, swears that upon analyzing the High Court stamps impressed on documents purportedly signifying BoB’s intention to defend the suit submitted to the Registrar of the High Court by Collins Newman & Company, he concluded that they had been tampered with and a false date inserted on them. The default judgment granted against Bank of Botswana on the basis that the central bank failed to submit papers signifying BoB’s intention to defend the EBC Guernsey’s suit over the company’s losses resulting from the alleged mismanagement in winding up of Kingdom Bank. If Cloete and Griffiths’ legal team get their day, there is no grabbing defeat from the jaws of victory from then on.
Griffiths will argue that Collins Newman & Company papers were forged in a bid to create an impression that same were submitted within the stipulated time. Handwriting expert Cloete’s analysis corroborated Wentzel’s assertion that stamps borne by Collins Newman & Company were forged.
Cecil Greenfield – Forensic Expert
Collins Newman & Company, have countered the assertion and have called in their own expert, a veteran Cecil Greenfield, a forensic expert. Greenfield is a qualified member of the American Association of Handwriting Analysts. However the enquiry into the authenticity of the documents, was hampered by the fact that the original files of the documents have since disappeared from the Court collection, according to some sources.