The Non-Bank Financial Institutions Regulatory Authority (NBFIRA) is reviewing the High Court’s dismissal of its bid to place Capital Management Botswana (CMB) under statutory management, with a view to possibly appealing.
BusinessWeek has established that NBFIRA is aiming to secure the establishment of a precedent in the matter, which revolves around P422 million fought over between CMB and the Botswana Public Officers Pension Fund (BPOPF).
The BPOPF and the CMB, an asset manager, are involved in a bitter dispute over the funds which the pension fund handed over between 2014 and 2017 for private equity placement.
Pursuing the return of the funds, the BPOPF lost a legal challenge against CMB on urgency last December, before appealing to NBFIRA which attempted to place CMB under statutory management, but also failed on Tuesday.
Advisors close to the NBFIRA said the regulator’s next move would be guided by the need to set the precedent, which would guide future attempts to place regulated entities under statutory management.
Very few entities have challenged NBFIRA’s statutory management and CMB is believed to be the first to do so successfully.
“The judgement was read for over two hours and you can imagine that means we have to sit down and study it. “Only after that will we take a view on whether justice has been served or whether we can go further,” NBFIRA CEO, Oaitse Ramasedi told BusinessWeek outside the High Court on Tuesday.
Earlier, Justice Omphemetse Motumise had found fault with all the jurisdictional grounds NBFIRA had put forward justifying its bid to place CMB
He dismissed the bid with costs against the regulator.
“The court does not adjust its interpretation according to the parties before it, or the amounts involved,” Motumise said.
“If that was the case, justice would only be available to the highest bidder. “The failure to provide CMB a hearing was a miscarriage of justice.” Legal experts close to the case told BusinessWeek after the judgement that the NBFIRA had several options available at its disposal.
“Besides appealing the decision, they could also look into the relevant acts for sanction against CMB, which is something the judge also indicated when he was speaking specifically about certain non-compliance,” one lawyer said.
“There could also be scope for NBFIRA to return to court at some point with a fresh application to place CMB under statutory management. The judge opened the door for this by saying he had based his decision on the information available to NBFIRA at the time it attempted to place CMB under statutory management and not on developments after this.
“There have been new developments in the matter and it is possible to use these as a basis for a new attempt to place the firm under statutory management, even citing Motumise’s judgment.”
For now, however, Motumise’s decision effectively sends BPOPF and CMB back to arbitration in the matter involving the P422 million.