Acting Gaborone High Court Judge, Justice Dr Zein Kebonang this week lost his cool and took a swipe at Bank of Botswana and its lawyers Collins Newman & Company for their initial decision to contest fraud allegations leveled against them by EBC Guernsey and their lawyers Minchin and Kelly.
The allegations of forgery against Collins Newman and the bank emerged after the Reserve Bank approached the High Court in a bid to stop EBC Guernsey (creditors of failed Kingdom Bank) from attaching its property to reclaim a P27 million debt arising from the winding down of the defunct Kingdom Bank.
It is alleged that the law firm’s lawyer, Bokani Machinya, forged a High Court stamp in order to submit its opposing papers before the set deadline to stop EBC Guernsey EBC Guernsey lawyers Minchin and Kelly from attaching BoB’s property.
In an interesting turn of events the bank and the law firm this week told Justice Kebonang that they accepted the fraud allegations made against them by EBC Guernsey and its lawyers.
In his ruling, Justice Kebonang noted that “Had these confessions been made earlier, the court would not have been preoccupied with this issue. The court’s time and other parties (EBC Guernsey and lawyers) would have been put to better use.”
He added that “the fraud allegations made by the First Respondent (EBC Guernsey are of grave and criminal nature. Applicant (Bank of Botswana) insisted on having made a proper appearance and only made a confession this morning.”
Justice Kebonang said Bank of Botswana had filed an affidavit through one of the senior partners at Collins and Newman Company Rizwan Desai that it did not take issue with fraud allegations made by EBC Guernsey and that such allegations must be accepted by the court and EBC Guernsey.
He said the court had not made any findings of fact on allegations of fraud but was only invited by “the Applicant (Bank of Botswana) to accept the allegations by the Respondent (EBC Guernsey).”
“In so doing, we must accept that allegations made by the Respondent are of grave and criminal nature.”
Earlier on, Bank of Botswana’s lawyer Advocate Ana Milovanovic who was instructed by Collins Newman and Company told the court that BoBs wanted to be entirely removed from the fraud allegations that were allegedly committed by one of the law firm’s lawyers.
“Partners at Collins and Newman Company do not admit or acknowledge any wrong doing; they distance themselves from any unlawful action of Ms Machinya,” she said.
Justice Kebonang noted in his judgment that “According to the Applicant, Machenya acted on her own.” He added that “if one accepts the invitation extended to court by the Applicant; that it must accept fraud allegations contained in the Respondent’s affidavit, these allegations are of serious nature.”
He said by not contesting the fraud allegations, the bank should accept payment for the defendant’s lawyers as well and the cancelled dates on which fraud case was scheduled for hearing.
Before Kebonang delivered his ruling, Advocate Milovanovic had also emphasized that the Bank of Botswana was no longer relying on Machinya’s version (that the court papers to defend were filed on time). This prompted Justice Kebonang to interject saying the bank and the law firm’s conduct was akin to a verse in the Bible in which Peter is said to have betrayed Jesus Christ.
“If the bank says it does not rely on Machinya’s version, what should the court rely on,” asked Kebonang.
In response, Milovanovic stated “My client cannot admit to the alleged fraud by Machinya. The bank has always been distant. We are dealing with an attorney’s potential misbehavior and the partners do not take responsibility for what transpired.”
She added that “after an internal investigation in relation to Machinya’s conduct, we addressed the Respondents that the bank cannot rely on Machinya. She has been placed on leave pending investigations,” she said. She said the bank does not want its staff to lead oral evidence before court in the fraud case that was scheduled for 21-23 October.
EBC Guernsey’s Advocate Stais Panayiotis who was instructed by Minchin and Kelly said they did not need a criminal case to determine whether the Collins and Newman and babk of Botswana had committed fraud or not.
“We do not need any investigation by the Directorate of Public Prosecution (DPP) to tell your lordship whether this was fraud or not. High Court stamps had been cloned from another document,” he said.
Panayiotis added that “the Respondent (EBC Guernsey) does not accept that the Applicant (BoBs) is blameless in the conduct of this matter.”
He said Desai stated in an affidavit that the bank does not dispute the fact that there was unlawful conduct by one of their lawyers.
“They must explain why they say the bank is blameless. They say their client has nothing to do with this; Collins and Newman and the Banks has nothing to do with Machinya?” he asked rhetorically.
He also wondered why Collins and Newman insisted that EBC Guernsey should have called Machinya to testify in the fraud case saying evidence has already proved by experts.
“Machinya is employed by the law firm and represented the bank,” he said.
The concert order agreed between EBC Guernsey and Bank of Botswana states that “based on the uncontested evidence of the expert witness Mr. Cloete who filed an affidavit on behalf of the First Respondent, the filing stamp of the Registrar and the receiving stamp of Minchin and Kelly on the purported appearance to defend are not guanine and have been transported from another documents. Therefore the purported appearance to defend relied upon by the Applicant which was neither served nor filed is not valid in that it is an authentic document.”
