The Bank of Botswana (BoB) and its lawyers Collins Newman & Co may be slapped with fraud and perjury criminal charges for lying under oath. It emerged last week that the central bank and its lawyers attempted to mislead the High Court in a case in which they sought to stop EBC Guernsey from attaching the bank’s property to reclaim a P27 million debt arising from the winding down of the defunct Kingdom Bank.
Gaborone High Court Justice Zein Kebonang this week fell short of accusing the central bank of being untrustworthy. In a strongly worded judgment, Kebonang found that Bank of Botswana has been complicit in the conduct of its lawyers Collins and Newman Co. in committing fraud and lying under oath.
Kebonang has since found that the law firm and the bank forged a High Court stamp in order to submit their opposing papers timeously before the set deadline to stop EBC Guernsey lawyers Minchin and Kelly from attaching BoB’s property.
Justice Kebonang said Bank of Botswana’s explanation of the default as contained in their original founding affidavit and replying affidavit “was not only premised on falsehood” but their attorneys, Collins Newman & Co “deliberately set out to use the court process as an instrument of fraud by submitting forged court documents” .
He added that “in my view, the Applicant (BoB) is bound by its assertions in the original founding affidavit. The question whether an appearance to defend had been filed with court was a factual rather than a legal question.”
Kebonang found that Bank of Botswana’s answer to a factual question of whether an appearance to defend had been filed was to unequivocally confirm same as having been filed when that was not so. Thus under, the Applicant chose on this factual question to march in fraudulent tandem with its attorney when it could have distanced itself from this averment,” said Kebonang.
On Bank of Botswana’s contention that the deception of its attorney entitled it to start another application afresh, Kebonang said it may well be that there are cases in which it would be inappropriate to hold a litigant to the misdeeds of its attorneys, “this is not one such case.”
“When the Applicant’s affidavits are considered, it is clear that although the Applicant was also a victim of deceit by its attorneys, it was nonetheless too happy to give credence to the lie under oath. It went all along with the scheme masterminded by Ms (Bokani) Machinya to deceive this court when vigilance required it to dissociate itself from her,” said Kebonang.
He said tampering with court documents by Bank of Botswana’s attorney involved far more than an injury to it. “It was a wrong against the Administration of Justice and the First Respondent. This deception however must become a liability to the Applicant and it not its opponent or the court,” said Kebonang.
The judge found that the concealment or otherwise of the letter of June 2015 and the filing or forged documents was an unconscionable schemes designed to interfere with the court’s ability to fairly adjudicate on the dispute. “The Applicant’s attorney knew that the disclosure of the letter would undermine its case and would have been happy with the court making its decision ignorant of this critical piece of information,” said Kebonang.
He said the court must be slow to make decisions in favour of those who seek to compromise its integrity and the judicial process. “Equally, the court must not be impotent or mute or complacently tolerate or allow itself to be a helpless victim of deception or fraud. If deception protected clients from consequences, then it would become all too common,” he said.
Though Bank of Botswana and Collins Newman were guilty of fraud, as they had admitted, Kebonang said he had satisfied himself and based his judgment on the Court of Appeal (CoA) findings to rescind the application. Therefore, Kebonang granted the bank the rescission application.
“The matter does not end here though. Ms Machinya’s footprints are everywhere. On the record of proceedings before me, it is clear that Mr Moses Pelaelo (The Deputy Governor of Bank of Botswana) , Mr Machinya and Mr Totolo(Law intern at Bank of Botswana) have lied under oath and opened themselves to perjury,” he said.
Kebonang added that “Ms Machinya as a officer of this court should have known better while Mr Totolo as a law student should have also had sixth sense. Mr Pelaelo on the other hand, blindly trusted his attorney, ignored all the warning signs and allowed himself to be a victim of the deceit perpetrated by attorney.”
Kingdom Bank was closed in May last year after an inventory of its balance sheet compiled by Deloitte Botswana found the offshore bank’s liabilities to be outweighing its assets by approximately $17 million (P171 million), leading to the BoB, as the regulator, to petition the courts for an order to liquidate the bank.