23 Jan 2025

 Vice President, Mr Ndaba Gaolathe has withdrawn his appeal against the liquidator of Capital Management Botswana (CMB). Justice Bess Nkabinde of the Court of Appeal ordered on Wednesday that the appellant was granted leave to withdraw the appeal and that each party pay its own costs. 

The order followed a consent draft order agreed by both the appellant and the respondent that the matter be withdrawn and request that the draft order filed be made the decision of the court. 

Mr Gaolathe’s application relates to the 2022 September decision by Justice Matlhogonolo Phuthego to dismiss his application relating to the setting aside and recovery of a transaction of about P1.3 million from CMB. 

According to the judgment by Justice Phuthego, prior to CMB being put under final liquidation, the liquidator in the cause of duty observed that as at 31 December 2016, CMBs assets were exceeded by its liabilities. 

“Upon investigating it was noticed that a total amounting to P1 333 328 was paid by CMB to the applicant, during the period running from 25 May 2017 to 10 January 2018,” it was stated. 

The payment, according to the liquidator, was not supported by any proof of any justifiable basis or supporting documents and the applicant confirmed the payments during interrogation. 

Hence, the applicant approached court seeking to explain why the aforesaid amount should not be set aside and recovered. 

The applicant stated that from the second half of 2017 and throughout to March 2018, he rendered services to a company called Fleming, and had been engaged through a letter written by one Tim Marsland on behalf of Capital Management Africa (CMA), the holding company that had acquired Fleming. 

As to the payments, the court stated that the applicant averred that he was satisfied that CMA was the core vehicle, with which Marsland intended to pursue the building of an indigenous financial transnational of which Fleming would be a key driver subsequently. 

Court said the applicant stated that he justifiably expected CMA to bear his fees until the capitalisation was normalised. 

“According to him CMB, as a subsidiary of CMA, would do so on behalf of CMA , as doing so is not unusual in corporate management of intra company transactions,”read Justice Busang’s judgement. 

Nonetheless, court ruled against Mr Gaolathe stating that he failed to put a lawful and valid defence to the notice by the liquidator to set aside and recover the payments that had been made to him by CMB. ENDS