Tuesday, May 18, 2021

Fabrimill Botswana placed under provisional liquidation

Fabrimill Botswana (Pty) Ltd, a company providing mechanical engineering support to the mining sector was placed under provisional liquidation earlier this year. This was revealed by an inspection of the records of the Court and the Master.

The court attends to various cases involving disgruntled business partners seeking redress, but a matter between Francisco Kgoboko (citizen), as the petitioner, and Charles Horne (South African citizen), as the respondent seems to depict a dubious nature that drew the attention of this publication. According to the records, Kgoboko and Horne were previous shareholders of Fabrimill (Pty) Ltd. Horne held 70 percent of the shares and was denoted the majority shareholder while Kgokobo owned 30 percent of the shares referred to as the minority shareholder.

The provisional order, as the records indicate, was applied for by Kgoboko through his legal representative, Sidney Pilane and was granted by Judge Tau. His complaint was that he had been wrongly fired as a director and that his co-shareholder was running the company as he pleased, and thereby side-lining him. This action prompted Horne to refute the order who sought urgent help from the High Court, through his legal representative Chris du Plessis, on reason that he had not been given a formal notice of such a decision and as such the action depicts an abuse of court process.

Under provisional liquidation, Fabrimill’s operational activities were halted pending the resolution of the shareholders’ dispute. Under such terms, Cyril Ziman was appointed the provisional liquidator. However certain papers argue against his appointment suggesting that it had not been formalised in accordance with section 381, 382 and 445 of the Company’s Act.

What is even more intriguing is the fact that the provisional order of liquidation was granted purely based on a clash of opinions with regard to the running of the company. The papers further disclose that judgement was finally pronounced by a different Judge, Judge Mothobi as Judge Tau had been requested by the petitioner’s lawyer to recuse herself, on reasons deemed unclear. Five months following the approval of the provisional liquidation order by Judge Tau, it was discharged by Mothobi. He ruled that Horne purchase Kgoboko’s shares according to a judicially prescribed valuation.  Records indicate that Kgoboko sold his shares to Horne for an agreed purchase of P1 250 000.00 (One million Two hundred and Fifty Thousand Pula only). “A letter signed by the parties jointly addressed to Bank Gaborone and other interested parties confirming the settlement and confirming the business of Fabrimill, and its bank account is to revert to normal and further confirming the company is no longer in liquidation,” reads a letter addressed to the Master.

Following up on the judgment by Mothobi, Sunday Standard contacted Horne to find out about the impact of the buy-out settlement, and discovered that his company may not commence operations as his work permit was terminated. Horne passionately expressed his anguish as he did not anticipate that his work permit would be terminated. He said he expected to commence trading following the settlement of the matter but is now burdened by the process of arranging to collect the company’s equipment.

It would also emerge from Sunday Standard’s investigations that this is not Horne’s only headache, apparently upon reconciling his accounts Horne became aware that Bank Gaborone, acting through its legal advisers transferred a sum of about P53 000, apparently for various types of fees due to its attorneys, without his consent as the signatory. Bank Gaborone’s attorneys as revealed by the investigations has as one of its partners, Cyril Ziman, whom the court had appointed as the company’s liquidator. Horne is said to have reported the matter to the Bank Adjudicator and the Law society.  At the time of writing, it surfaced that around P 10 000 had however been re-credited to Fabrimills’s account, and it is not certain whether the threatened civil and criminal charges will be pressed.

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