Saturday, June 22, 2024

Court papers implicate minister in licensing bribery

In terms of the Liquor Act that was introduced in 2008, an establishment that sells alcohol is not allowed to trade less than 500 metres away from a major road or a school. Armed with this knowledge, Luc Vandecasteele, the Managing Director of Sphinx Associates, the company that owns Molapo Crossing in Gaborone, queried why two such establishments had been given trading licences.

The first was the bottle store at the Sebele Pick n Pay supermarket in Gaborone. The supermarket is just a hop and a skip from the A1 Highway which connects Southern Africa to the rest of the continent.  The second was a bottle store in the new Gabane shopping mall that is not too far from a junior secondary school. On following up this matter with the Ministry of Trade and Industry (renamed Ministry of Investment, Trade and Industry), Vandecasteele learnt from then Permanent Secretary, Banny Molosiwa, that initially both licence holders had been unsuccessful ÔÇô the Gaborone City Council rejected Pick n Pay’s application and the Kweneng District Council rejected that of the Gabane establishment.

“They (applicants) appealed to the Ministry of Trade and Industry and their appeals were duly acceded to,” Molosiwa wrote in a June 6, 2014 letter.

Her letter doesn’t say so but such appeals are made to the minister who has legal authority to reverse decisions of licensing authorities. The Act says that the minister can overrule licensing authorities “in the interest of the wider public.” At this time, the Minister of trade and Industry was Dorcas Makgato who has now been redeployed to the Ministry of Health and Wellness. Still dissatisfied, Vandecasteele followed up on the issue, narrowing down his focus to the wider-public-interest clause in the Liquor Act. He wrote: “We humbly request the Hon. Minister to explain how opening a bottle store in contravention of the Act can be in the wider public interest. The bottle store in Gabane is adjacent to a secondary school. Again, the Hon. Minister used her discretion to overrule the Act. Is ensuring access to alcohol for minors in the wider public interest?”

When the response letter came, it was not from Molosiwa herself but a junior officer who signed the letter on behalf of the Ministry’s Chief Negotiator, Phazha Butale. The response was simply that “the Hon. Minister decides in each case which comes before her, on its merits. This was done in the present case and the minister was of the view that the licence should be granted.”

The issue of the Gabane licence seems to have stopped at the sarcastic shot about how ensuring access to alcohol for minors can be in the wider public interest. The issuance of the other licence has gone much farther ÔÇô the Lobatse High Court to be precise. This licence is now being controversially mentioned in a court case between Sphinx Associates and Vandecasteele on one side and Pick n Pay directors and their company, Horn of Africa, on the other. In the order in which they are cited in the court papers, the latter directors are Bruce Milne, Christopher Linder and Mahesh Patel. Through Pick n Pay supermarket, Horn of Africa is the anchor tenant at Molapo Crossing shopping mall. This was the first Pick n Pay store in Botswana but Horn of Africa has since expanded its footprint and not too long ago, opened a new store near Game City shopping mall in Gaborone.

During one November 2011 meeting where the two parties held a meeting to discuss Pick n Pay tenancy in Molapo, Vandecasteele expressed concern that this expansion was negatively impacting on the quality of customer service. The meeting was held at the Sphinx Associates offices in Molapo Crossing itself. Minutes of this meeting (which refer to the attendees by their first names) quote Vandecasteele as reminding Milne, who used to run the store as an owner-manager, that it “used to be voted the best supermarket in the country.” Vandecasteele’s believed the standards declined because the “owners of the store are no longer managing it.” Patel disagreed and blamed the mall owners for “failing to address the traffic access.” The latter relates to the construction of traffic islands that now impede easy access to the mall.

“Mahesh further claimed that he has contacts to sort this problem out, but Luc never asked him! Luc was accused of not knowing the local ‘mechanisms’ and he suggested that others want to buy the centre and they are using their muscle to hurt Molapo,” the minutes say.

When it was suggested that Vandecasteele should either sell the centre or team up with the Horn of Africa directors, the former is said to have been “surprised at the frankness of the statement.”

Ranting and raving for the first time as United States president, Donald Trump struggled to position himself within the realm of reality and didn’t make sense even to those with personal experience of giving a presidential inauguration speech. Later, as he descended down the grandstand, former President George Bush is supposed to have turned to someone he thought he could trust and whispered: “That was some weird shit!” Minus the qualifying adjective, that same gangsta rap-popularised expletive is reported to have been used at the Molapo Crossing business meeting in question. This came after a suggestion that Patel should make an offer to Vandecasteele to buy the mall. “Mahesh responded that there is too much ‘shit’ attached to Molapo,” the minutes say. There is no elaboration on this point and in the next breath, two seemingly anxious Horn of Africa directors revisited the traffic access issue. They “requested Mahesh why he did not help, and whether he can do whatever it takes to get the traffic resolved. Mahesh did not respond.”

The minutes of this meeting now form part of the court record in a defamation lawsuit and in his own affidavit, Vandecasteele says a bit more on this issue. In it he says that these minutes were given to Milne only “who requested that the minutes not be distributed to other parties at all.” At least from what the affidavit suggests, “shit” was not the only exotic word that was used at that meeting: “The minutes do not reveal the true accusations made as they were too crude to write them down.”

The most startling detail though is what Patel (the fourth plaintiff) is supposed to have revealed with regard to how he got the trading licence for the Sebele Pick n Pay bottle store. Patel reportedly revealed “how he is familiar with the ‘African’ negotiating way and how he got the [bottle store] licence contrary to the prevailing law, approved directly by the Minister. I state further, on oath, that the fourth plaintiff surprised his fellow shareholders by further accusing me of being unable to negotiate in this African way. I state on oath that the fourth plaintiff explained at the meeting of 29th November 2011 that he agreed with the minister that if the liquor licence is issued, he will not allow any drinking of liquor on the premises. The licence was issued although the legislation does not permit its issue even if alcohol is not consumed on the premises.”

In another part of his affidavit, Vandecasteele explains what he understood “negotiating the African way” to mean.

“I vividly remember that the fourth plaintiff did say to me that I am incapable of negotiating the African way, implying giving out bribes. This was said in 29th November 2011 when discussing the disastrous road junction freshly constructed by Roads Department at a meeting at the [Sphinx Associates] offices. It should be noted that indeed, all persons that we had to deal with at the department have since been accused of bribery. I did assist [the Directorate on Corruption and Economic Crime] with information and deposed to an affidavit,” Vandecasteele’s affidavit says.

In fairness to Makgato, nowhere is she mentioned by name in the affidavit but she was the Minister of Trade and Industry at the time that all this intrigue is alleged to have happened. The use of “her” in correspondence between ministry officials and Vandecasteele also compromises her identity because the only other woman to have served as Minister of Trade and Industry (Gaositwe Chiepe) did so over three decades ago and is now retired.

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