Justice Motumise’s competence on trial in CMB case

30 Jul 2018

High Court Judge Omphemetse Motumise’s competence was on trial this week following his judgement that enabled Capital Management Botswana (CMB) to continue siphoning off millions of Botswana public officers pension money.

The Court of Appeal ruled this week that Justice Motumise “was in error, to grant an order reviewing and setting aside NBIFIRA’s decision to appoint a statutory manager and that portion of his decision must be set aside.”

This was after Justice Motumise refused to confirm NBIFIRA’s appointment of former High Court Judge Peter Collins as CMB statutory manager.

The Phrase, “Motumise erred” appears at least half a dozen times in the 80 page Court of Appeal judgement that reversed his earlier judgement.

The Court of Appeal went so far as to call Justice Motumise’s order in favour of CMB an “order of doubtful validity.” The three person bench comprising Judge President Ian Kirby, Justice Brand and justice Walia suggests that Justice Motumise ignored red flags on the CMB case. The Court of Appeal stated that, “after obtaining an order of doubtful validity, without notice, on 1st February 2018, unfreezing its ban accounts, CMB moved out funds amounting to P10 million the same afternoon, before the order could be rescinded;

That upon Collins assuming his role as statutory manager, he was refused access to the records of CMB and its associated companies, and was threatened with physical restrain;

That a “key person” asset manager, Mr Rhys Carr, had exited CMB in unclear circumstances, leaving Marsland as the sole “key person”;

That following the refusal of CMB to reveal the person to whom BPOPF’s 99% holding in BOP had purportedly been sold for P50 million, Marsland was revealed as still controlling P150 million worth of Okavango Wilderness Holding shares (one of BPOPF’s assets) when, on 31st January 2018 he wrote to Bona Life offering to capitalize that company with a purported “loan” of those shares;

That a charge of fraud had been laid against Okaile and Marsland for attempting to access and transfer funds amounting to millions of pula from a bank account belonging to Botswana Insurance Fund management;

That of the pensioners funds held in BOP, CMB and disbursed P50 million purportedly for the establishment of a Business College in Gaborone (AGILE), two of whose directors were members of CMB’s own investment committee, but, two years later, there was no sign of any business college;

That a further P150 million had been disbursed to a company Kawena Holdings (Pty) Ltd of which Marsland was a director, but no records were availed to show the nature of Kawena’s business or the fate of the money.