The first session of the final creditors’ liquidation meeting of Capital Management Botswana (CMB) adjourned last Thursday to April with the High Court Master, Chipo Gaobatwe ruling that CMB directors are in contempt of court. When wrapping up, attorney for the Liquidator, Peter Collins told the Court Master that he is still left with some people who must give testimony amongst them Chief Executive of Bona Life, Regina Vaka, but will appear on April 25 when the meeting resumes.
Collins said another person that must testify is Moitsheki Lekalake who came to the court briefly and disappeared, but did not give the liquidator his particulars. He then requested the Master to write a letter referring him to the Attorney General because to refuse to come when subpoenaed is a criminal offence.
Collins said that CMB directors Rapula Okaile and Tim Marshland as well as their attorney, Gabriel Kanjabanga have contravened Section 430 of the Company’s Act. Kanjabanga was subpoenaed in his own right to explain his involvement because the liquidator discovered that he was involved in his official capacity in some transactions. The above section states that any person summoned by the Master or other officer in terms of subsection (3) or (4) who fails without valid excuse (a) to attend any meeting to which he has been summoned; or (b) to produce any book or document or extract from any book or document in his possession, custody or control, shall be guilty of contempt of court and liable to a fine not exceeding P1,000 or to imprisonment for a term not exceeding 12 months or to both.
Collins requested the Master to refer them to the Attorney General saying something must be done lest the integrity of the court, the office of the high court master and the meeting, is compromised. Collins told the court master that he has proof that Marshland has been served with summons to appear, he said Marshland contravened Section 512 and 513 of the Companies Act. He said he has an affidavit deposed by one Van Wyk from South Africa who delivered the summons to Marshland and explained that Marshland said he was not prepared to sign. Collins quoted the section which states that in every winding up of a company unable to pay its debts, all the directors of the company, including, if the Master so directs, in writing, any person who has been a director within a period of six months preceding the date on which the winding up commenced, shall attend the first and second meetings of creditors and every adjourned first and second such meetings.
The directors shall also attend any subsequent meeting of creditors if required to do so by written notice from the liquidator. The Master or other officers in the public service who is to preside or presides at any meeting of creditors may summon any person, who is known or, on reasonable grounds, believed to be in possession of any property which belongs or belonged to the company or to be indebted to the company or any person who in the opinion of the Master or such other officer may be able to give any material information concerning the company or its affairs, whether before or after the commencement of the winding up, to appear at such meeting or adjourned meeting for the purpose of being interrogated under section 431.
He requested the Court Master to write a letter referring the concerned parties to the Attorney General where they will be made to face criminal charges. In her ruling High court Master Gaobatwe ruled that Okaile and CMB directors are in contempt, but she finds it difficult to refer Okaile to the Attorney General as he delivered a sick note to the court and is not sure if he has recovered. She said she will write a letter for both Lekalake and Marshland to be sent to AG Chambers.Attorney for NBFIRA, Sipho Ziga requested the court Master to furnish them with the official court record in summary form of the first meeting as he has to present it before the high court.
To that the court Master Gaobatwe agreed and promised that the summary requested from her office will be available on February 28th. She ruled that new creditors though allowed will not be able to submit during the second meeting billed for April 25- 26, but will do so at a later date to be communicated.