29 Jul 2020

Former board secretary and legal advisor at Botswana Public Officers Pension Fund (BPOPF), Mr Musa Nleya has refuted the defence attorney’s submission that he is party to the team that is purported to have violated a court order by signing a contract with Capital Management Botswana (CMB).

Giving evidence in chief before Judge Mokwadi Gabanagae of the Gaborone High Court on Tuesday, Mr Nleya said the signing of an investment contract by the then BPOPF board of trustees’ chairperson, Carter Morupisi with CMB on November 11, 2014 was in violation of the law as it was not authorised by the board. 

Mr Nleya recollected that following a court order that was issued on October 7, 2014, after the National Amalgamated Central, Local and Parastatal Manual Workers Union questioned their non-representation in the BPOPF board of trustees, the activities of the board were suspended pending finalisation of the order. 

As per the rules of the BPOPF, Mr Nleya said resolutions were made unanimously by members of the board of trustee. 

“In an instance where there was no consensus, the pending issue would be tabled again at the next board meeting with an endeavour to arrive at an unanimous decision and if that is not achieved, the regulatory body, NBFIRA, would be engaged for a final say,” said Mr Nleya.

He further confirmed that at the time when he parted with the fund on November 16, 2014, Morupisi was the chairperson of BPOPF board of trustees and that he also took part in the adjudication process where BPOPF was seeking services of a private equity manager. 

“As a member of the management tender committee, I was involved in the adjudication of bids that were submitted by the various asset managers, including the one from CMB,” he said.

Mr Nleya said on May 19, 2014, the management tender committee presented a recommendation to the investment and finance committee for the appointment of CMB as private equity manager, subject to the undertaking of the due diligence process.  

After the exercise was completed, Mr Nleya said a report was presented to the board by the investment and finance committee at a meeting held on August 21, 22, 2014 and subsequently concluded on September 4, 2014. 

The report stated that CMB passed the due diligence exercise and was subject to a review in accordance with legality of how the private equity structure was to be formed. 

He said on October 22, 2014 CMB provided their legal opinion confirming legality, lawfulness and enforceability of the proposed partnership. 

On the basis of the agreement, Mr Nleya said CMB formed a structure on November 3, 2014 under the name Botswana Opportunity Partnership (BOP). 

He further revealed that on November 11, 2014, BPOPF, through the board of trustees chairman, Morupisi accompanied by acting CEO, Ms Lesedi Moakofhi signed to seal a private equity management deal with CMB. 

“It is important to highlight that, at the point of signing the contract, the October 7, 2014 order of the court suspending the board activities was still active. 

Even on November 16, 2014 when I parted ways with BPOPF, the board was still suspended,” said Mr Nleya.

Mr Nleya also confirmed his presence at the contract signing ceremony. 

“I gave advice to the acting CEO, Ms Moakofhi to take heed of the fact that the court order suspending BPOPF board activities was still active, unfortunately, she ignored my advice as the deal was nevertheless concluded,” he said. 

Mr Nleya said Ms Moakofhi responded by indicating that, ‘she does not want to be seen as someone who is against the implementation of the board’s resolutions like myself and other executive board members were previously accused of’.

Mr Nleya also recalled that at one point when the board was under the chairmanship of Mr Rapula Okaile, he was accused of having issues with implementing resolutions that were taken by the board of trustees, adding that some of such issues ended up at courts of law. 

Under cross-examination by the defence attorney, Mr Basimane Bogopa, Mr Nleya has maintained that the board of trustees was not in existence at the time when the contract with CMB was signed.  

Mr Nleya concurred with Mr Bogopa that the signing of the contract concluded the agreement that confirmed CMD as private equity managers. 

He, however, maintained that there was no resolution from the board of trustees that was related to the signing of the agreement and therefore refuted the thinking that the chairperson was implementing the board’s decision.

Mr Nleya also said that the court order only removed the nine employee representatives (trustees) from the BPOPF board of trustees, whereas the other nine members representing the employer were not affected by the order, and that the chairperson was also not suspended from his office. 

Nonetheless, Mr Nleya was adamant that the court order also suspended board activities.

As a legal advisor, Mr Nleya also concurred with the defence attorney that he was bound to address the chairperson and the CEO on points of law.  

He also disputed that he failed in his duties as a legal advisor and that he was at fault as the signing of the contract was executed in his presence. 

Ideally, when the board is in operation, the chairperson will be implementing its decisions that were made in the form of resolutions.

Mr Nleya said the advice he gave to the acting CEO in relation to the court order was done verbally and that the chairperson and CEO looked up to him for profound guidance. 

“I believe that on that day, I had fully executed my advisory role. If a person does not take heed of your advice, they must be ready to live with the consequences of their actions. 

I dispute that I was part of the team that violated the provisions of the law as stipulated in the court order. Had I not given the legal advice, I would agree that I was party to the violation,” said Mr Nleya. 

He also added that, “I did not at all fail in my duties as legal advisor. 

I suspect the CEO and chairperson had an agenda, therefore despite my advice, they opted to continue with their plot. 

Even though I did not report my suspicions of a dubious plot to the Directorate on Corruption and Economic Crime [DCEC], I believe such action is the reason we are in a court of law today.”

Morupisi, R7 Group and Pinny Morupisi appeared before Judge Gabanagae at the ongoing trial facing three counts of corruption and money laundering. 

The first accused person, Carter Morupisi is facing two counts of corruption and is also another count jointly charged with R7 Group and Pinny Morupisi on the count of money laundering.

On the first count, Morupisi is facing is charged with corruption, contrary to section 24A (1) read with section 24A (3) of the Corruption and Economic Crime Act. 

Particulars of the offence are that the accused person, while employed by the Directorate of Public Service Management (DPSM) serving as a public officer who held the position of board chairman for the Botswana Public Officers Pension Fund (BPOPF), on or about November 11, 2014 at or near Gaborone without the final resolution of the board and in abuse of his public office as chairman of BPOPF and while the board was on suspension, corruptly signed a contract with Capital Management Botswana to administer the BPOPF funds as private equity managers and in the process obtained valuable consideration for himself and his wife’s company R7 Group. Ends