Sunday, January 29, 2023

High Court judgement portrays former BPOPF CEO in bad light

To be perfectly clear from the get-go, the former Acting Botswana Public Officers Pension Fund CEO, Lesedi Moakofhi, has not been accused of anything. However, judgement by Justice Chris Gabanagae at the Gaborone High Court that found a former Permanent Secretary to the President guilty raises serious ethical questions about Moakofhi’s role in administrative action that has been determined to have been criminal.

The former PSP is Carter Morupisi who, at the material time, was still the Director of Directorate of Public Service Management and Chairperson of the BPOPF Board of Trustees. The state’s case was that Morupisi corruptly signed a contract to authorise Capital Management Botswana to manage a portion of the Fund’s money. This happened without the authority of the Board – which was absolutely necessary. The Court determined that thereafter, CMB directors returned the favour by buying a company owned by Morupisi’s wife a luxury four-wheel drive vehicle.

At the time that all this was quietly, fatefully unfolding, Moakofi was BPOPF CEO. At this same time, the manual workers union was waging concerted legal campaign through the Collins Chilisa Consultants, a Gaborone law firm, to get representation on the BPOPF Board. Thus it was that Mboki Chilisa, a partner at the firm, secured a court order from Justice Tshepo Motswagole on behalf of the union. In terms of such order, activities of the BPOPF Board were suspended until the union was represented at its meetings. However, BPOPF didn’t comply with the order, instead launching its own (urgent) application to have Motswagole’s order overturned. The parties would later make an out-of-court settlement and while waiting for BPOPF to make good on its undertaking to include manual representatives in its Board, Chilisa got wind that “some business of the Board was being executed.” He promptly shot off a complaint letter, reminding BPOPF that it had yet to comply with Motswagole’s court order. This letter was copied to Morupisi in his position as Board Chairperson.

The business in question was the award of a lucrative tender to CMB – which had been concluded without the representation of a manual workers union in the Board, which representation Motswagole had ordered. When the matter blew up, Chilisa would give evidence as a state witness and he told the court that “Ms. Lesedi Moakofhi did nothing to revoke the contract styled en commandante agreement they signed awarding CMB mandate to manage BPOPF private equity to investment funds.”

In Moakofhi’s management team was Moemedi Malinda, who as Investment Portfolio Director, was responsible for the actual implementation of Board decisions. Malinda told the court that on the very day (November 11, 2014) that the Board was not operational (which meant that, for him, there was no decision to implement), “the then Acting CEO, Ms. Lesedi Moakofhi, organised the signing ceremony of the en commandante agreement.” Present at the ceremony were Morupisi, Malinda, Moakofhi herself, Musa Nleya, the Board Secretary and Legal Services Manager as well as two CMB directors, Rhys Carr and Timothy Marsland.

Nleya would himself testify during the trial, telling the court that Morupisi attended (and would thus have chaired) the meeting where CMB was awarded the tender in question. He critically added that this happened when activities of the Board had been suspended in terms of a court order issued by Motswagole.

Nleya’s professional opinion mattered the most at this critical juncture for the simple reason that he was the Legal Services Manager and the Board was wading into an issue that had legal implications. In his testimony, Nleya said that he advised Moakofhi against the signing of the contract. The judgement summarises his testimony as saying that “he indicated that the Acting CEO said that she did not want to be accused of not implementing Board resolutions like him.” As Malinda, before him Nleya told the court that Morupisi attended the signing ceremony.

In his own testimony, Morupisi denied that a signing ceremony was held and that he attended it. His testimony was that the contract was delivered to the Office of the President where he was attending a performance review exercise for the Ministry of Minerals, that was conducted by then President Ian Khama in the Cabinet Boardroom. Gabanagae determined this explanation to be a clear “afterthought meant to mislead the court.” Morupisi also said that he subjected himself to Nleya’s professional guidance every step of the way.

It was Moakofhi who wrote CMB to notify its directors of the Board’s decision to give their company a conditional offer pending successful completion of the legal agreement. The conditions were that CMB should commit to investing 1 percent of the fund size and the second was that both parties should successfully negotiate and sign the general/limited partner agreement and any other agreement documents from BPOPF. 

One very important sub-theme that the judgement highlights is the special relationship between Morupisi and CMB’s CEO, Rapula Okaile. Two years before the problematic transaction, Okaile was himself the Chairperson of the BPOPF Board of Trustees but would be replaced by Morupisi. Thereafter, he became an executive assistant (“private secretary” is also used in the judgement) to Morupisi when the latter was the Director of Public Service Management.

The judgement says that Morupisi appointed Okaile to “certain special assignments” and those it mentions are working with the Botswana Defence Force Commander in a human resources exercise to reconfigure the remuneration scheme for soldiers and membership of an evaluation team for procurement of consultancy services on security checks for civil servants. The judge’s takeaway from this set of facts was that “[Morupisi and Rapula Okaile know each other very well.” After Morupisi signed the CMB tender, Okaile quit the civil service and four months later, resurfaced at CMB as CEO with a 10 percent shareholding.

Justice Gabanagae recreated a comprehensive timeline that summarises the sequence of events from April 11, 2013 to May 15, 2017 when Morupisi registered the vehicle at the centre of the saga at the Department of Road Transport and Safety. His analysis of the evidence is that it is “clear” that funds were moved around to enable CMB directors “to acquire and pay an amount of R630 988.99 for the Land Cruiser which is the subject matter of corruption and money-laundering charges … in this case.”

The judge found that Morupisi and Moakofhi “deliberately defied” the court order issued by Justice Motswagole. In making reference to Nleya, the judge said that “he advised the then Acting CEO Ms. Lesedi Moakofhi against signing the contract” whilst the business of the Board was thus suspended.

“Furthermore, the emails that the then Acting CEO Ms. Lesedi Moakofhi sent to members whose membership was not affected by the court order, including [Morupisi] clearly show that all the parties concerned knew that the Board’s business was still in suspension,” the judgement says.

Moakofhi has since left BPOPF and is now Managing Director of Gaborone Container Terminal (“Gabcon”), a Botswana Railways subsidiary. Her appointment to the latter position was itself clouded in controversy because she was interviewed for the job by fellow members of the BR Board of Directors. The Board, which had earlier rejected the three candidates upon determination that they had “developmental needs”, ended up appointing Moakofhi whom the psychometric assessment showed also had developmental needs. She subsequently resigned her Board position to take up the Gabcon job.

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