“This is not about CMB, but rather, the true position of the law on such matters”, these are words said by the Non Banking Financial Institutions Regulatory Authority (NBFIRA) Chief Executive Officer – Oaitse Ramasedi in April 2018.
Ramasedi made the comment a few days after he suffered a humiliating loss against Capital Management Botswana (CMB) at the Gaborone High Court thanks to the judgment delivered by Justice Omphemetse Motumise.
At the time, the regulator was dragged to the High Court by CMB for appointing Peter Collins as its Statutory Manager. In his April 2018 judgment, Justice Motumise said that that the NBFIRA decision was drastic, with adverse and far reaching implications for the embattled asset management firm ÔÇô CMB.
“The absence of the board resolution, consenting to, or ratifying the application is fatal,” Motumise said in April 2018.
Fast forward to July 2018, still in the capital Gaborone, but at the Court of appeal (CoA), a panel consisting of CoA President Judge Ian Kirby, Judge Brand and Judge Walia turned the tables ÔÇô confirming the appointment of Peter Collins as the CMB Statutory Manager.
In a final judgment read out on 27 July 2018, Judge Kirby noted that the lower court, through Justice Motumise was in error, to grant an order reviewing and setting aside NBFIRA’s decision to appoint a statutory manager.
The CoA also pointed out that a portion of Justice Motumise’s decision must be set aside.
“A number of further red flag indicators were revealed both in the supplementary affidavits and in the Collins report, which tended strongly towards an outcome confirming the appointment of statutory manager, and a finding that substantial grounds for that appointment still exist” Kirby stated.
CoA says it also established that some few months after being appointed the Statutory Manager, Collins was not only refused to access the records of CMB and its associated companies but was also threatened with physical restraint by some of its directors.
The highest court in the land also established that a key person at CMB, being Rhys Carr exited the company in an unclear circumstance.
The CoA then ordered that the CMB Chief Executive Officer (CEO) Rapula Okaile and the company itself (CMB) jointly pay the costs of appeals including the costs of counsel.
Justice Kirby also remarked that, “It is to be hoped that the statutory manager will carefully examine the BOP with a view to establishing whether he can or should exercise his powers of repudiation under section 47(6) of the Securities Act,” said Kirby.
A lot, including millions owned by pensioners is said to have been at stake following the marathon case that almost got into its second year running.