- Tsaone Segaetsho
One of the biggest corporate disputes in Botswana’s business fraternity, involving retail giants Choppies, and their former accounting firm PriceWaterhouseCoopers (PwC) Botswana, heads back to court on 21 June for a status hearing on a fresh counter-application.
The landmark case that has persisted for over five years, involves Choppies and its main shareholders, Ram Ottapathu and Farouk Ismail, who were claiming P610 million against the retailer’s former audit firm PwC Botswana and its audit partner, Rudi Binedell, for the late release of the 2018 financial results, which the former had argued caused damage to their business.
In the latest development, the audit firm (PwC) is putting before the courts “an investigative report” from one of its clients, Bank Gaborone, seeking to nullify all legal actions against it.
This comes after Gaborone High Court Justice Boipuso Tshweneyagae awarded Choppies its first victory in November 2021, stating that the retailer and its directors were prejudiced by late release of 2018 financial results, and consequently incurred damages as Choppies’ share price nose-dived.
The same case had another round which took place in the chambers of a different High Court Judge last year, where Gaborone High Court’s Justice Boitumelo Makhwe gave another blow to PwC, further affirming Choppies’ claim of more than half a billion Pula. Following Justice Makhwe’s ruling on 05 April 2023, PwC had tried to lodge a counterclaim after losing the initial case but were unsuccessful.
However, recently a new twist has emerged where PwC and Binedell have made an application before Gaborone High Court’s Michael Leburu that the second ruling which was made by Justice Makhwe was a subject of corrupt judicial system of Botswana. PwC alleges Justice Makhwe’s ruling was not authored by her but by another Gaborone High Court Judge, Zein Kebonang, who has allegedly been or is still in Choppies’ payroll.
PwC’s application, which is currently being looked at by the courts, is riding on an investigation on Justice Kebonang by another PwC client, Bank Gaborone. According to court documents seen by this publication, Justice Kebonang was being investigated by two Bank Gaborone directors, Chairman Peter Collins and Mboki Chilisa, who found that Justice Makhwe would handwrite her judgments and not type nor dictate them before the courts.
The two directors allege that, like the same Choppies’ judgment which is under scrutiny, Justice Makhwe would be taking her handwritten judgements from Justice Kebonang in a flash drive. That is why, according to court documents, PwC want Justice Leburu to nullify Justice Makhwe’s ruling of 05 April 2023 as it is a subject of judicial scandal.
PwC also alleges that, corroborating from a report purported to be from Bank Gaborone or its directors, Justice Kebonang leaked the ruling he gave to Justice Makhwe to the press. Beefing up their case against the retailer or its directors, PwC says Justice Kebonang, by being a former Choppies employee, made sure his colleague grants an order that favours Choppies.
Binedell made this allegation in his founding affidavit that Justice Kebonang was influential in the more than half a billion lawsuit claim against PwC while still on Choppies’ payroll. It is further alleged that Justice Kebonang was receiving P15 000 for consultancy fee. The same Justice Kebonang availed his ruling to the media, said Binedell.
“The third respondent (Justice Kebonang) has business and financial ties to Choppies and the plaintiff, which motivates him, so it will be argued at the hearing of this application, to support the plaintiffs in this action,” said court documents from PwC lawyers seen by this publication.
In his founding affidavit seen by this publication last week, Justice Kebonang denied his involvement on the ruling made by his colleague, Justice Makhwe.
“I did not have a copy of it nor did I ever share it whether before or after it was issued. The allegations confirmed by Mr Collins to the effect that I handed over a flash drive to Judge Makhwe containing the ruling are a fabrication. Similarly, the allegations that Mr Newel (journalist) received a copy of the ruling from me are a fabrication,” said Justice Kebonang’s affidavit seen by this publication.
Justice Kebonang also called a bluff on PwC’s lawyers’ allegation that he also made a ruling available to the media, saying the documents by the applicants did not have the founding affidavit of the journalist/s who published the contents of that ruling he allegedly leaked.
Justice Kebonang further told the court that his appointment as a high court judge led to his termination of his employ as Choppies consultant in July 2017.
“After my appointment as full-time Judge of the High Court, Choppies Distribution Centre accounts department continued to inadvertently pay my consultancy fees for July, August, September and October 2017, totalling P60 000. When I became aware of these payments, I paid back the money to Choppies…,” said Kebonang’s founding affidavit, deposed before Gaborone High Court’s Justice Michael Leburu.
When countering PwC lawyers’ allegations, Justice Makhwe’s lawyers from Serole and Partners said their client was defamed with intentions to injure her integrity as a judge of the High Court of Botswana. Justice Makhwe also demanded an apology from PwC’s lawyers, threatening a defamation suit if this demand is not met.
She said the allegations made are blatantly untrue, defamatory, contemptuous and disrespectful to the authority of the courts and dignity of the rulings handed down by her.
Bank Gaborone through the bank’s legal and compliance manager, has also denied commissioning any investigation against Justice Kebonang, and does not want to be involved further in discussing the case.
The applicants in the 21 June hearing are PwC as the first applicant and Binedell as the second applicant against Ottapathu as the first respondent, with Ismail, Kebonang and Makhwe as second, third and fourth respondents respectively.
