Staff writer TSHIRELETSO MOTLOGELWA unravels the story of how one of the biggest corporate law firms muddled up the case of one of its most prestigious clients.
If the scriptwriting team of the famous law series Suits had a stubborn writers’ block they would be well advised to fly down to the Central Business District in Gaborone, Botswana, head to the High Court Building and ask for a file of the Bank of Botswana (BoB) against EBC Guernsey. Loaded inside that desk-high pile of files they would find a treasure trove, copious amounts of eye-popping, salivation-inducing characters and scenarios; experienced lawyers’ fraudulently created court official stamps, junior lawyers suffering from sudden migraines that stop them submitting papers and senior partners disowning decisions made by their juniors. Collins Newman & Co (representing the Bank of Botswana) in its perhaps mortal battle with Minchin and Kelly (representing EBC Guernsey, creditors of the defunct bank Kingdom Bank).
The turn of events is a climax to a series of twists and turns in a marathon case in which BoB, through its lawyers Collins Newman & Co, is seeking to stop EBC Guernsey from attaching the Reserve Bank’s property to reclaim a P27 million debt arising from the winding up of the defunct Kingdom Bank Limited (KBAL). EBC Guernsey argues that BoB should bear the responsibility for the losses it incurred as a result of the collapse of the defunct bank. BoB is attempting to halt a default judgment delivered against it in favour of EBC Guernsey.
The corporate legal giant accepted allegations that its Associate lawyer, falsified court documents.
Initially the law firm refuted allegations that it had failed to submit its papers on time to challenge the initial default judgment against its client. It claimed that BoB had submitted its papers properly. However, later when Minchin and Kelly Attorneys challenged the authenticity of the papers, the law firm retreated. However, the corporate legal giant accepted allegations that its Associate lawyer, Bokani Machinya, falsified court documents in an attempt to get the case overturned.
High Court Judge Zein Kebonang delivered a hard-hitting court order against the law firm. Senior Partner Rizwan Desai’s affidavit, and in arguments led by lawyer Advocate Ana Milovanovic for BoB, admitted to all the allegations of forgery against the law firm. However, leading her argument, Milovanovic sought to extricate not just BoB but the law firm Collins Newman & Co, from the actions Machinya is said to have committed. Secondly Collins Newman & Co sought to argue that even if Machinya was found to have fraudulently obtained the judgment, the matter of the fraud is of little relevance to the determination of the overall case.
Having failed to extricate itself from the blot of fraud allegations leveled at Machinya, Collins Newman & Co then sought to separate the works of Machinya from itself and most importantly, from the BoB. By end of last year, the parties seemed to have resigned themselves to the fact that the fraud matter had been settled in favour of Minchin & Kelly Attorneys.
The parties are expected to return next week Monday to argue the second leg of the case, the default order granted to EBC Guernsey.
This week the law firm asked the court to abandon all their earlier contentions.
However, this week the law firm asked the court to abandon all their earlier contentions. The main argument they are raising, through Deputy Governor Dinekere Pelaelo, Senior Partner Rizwan Desai and Senior Counsel Dineo Makati-Mpho, is that while they were not aware that Machinya had not submitted the original papers, it has since emerged that she in fact had not submitted the papers, and thus their discovery of these new facts warrants a complete overhaul of their initial legal direction. They now want the court to work from the assumption that the paper had not been submitted.
Pelaelo argues that he overlooked certain communications between him and Machinya, and thus failed to realise that Machinya had been misleading him that she had submitted her papers on time, only this later. He claims that he was misled by Machinya.
“Given Ms Machinya’s persistent version that she did file the appearance to defend which obviously conflicts with what she stated in the email of June 23 on the advice of counsel I (submitted further papers, arguing that) the question of the validity of the appearance to defend should not influence the rescission application, that it should be disposed of on the point of law raised and on the assumption that the appearance to defend had not been filed contrary to my instructions,” argues Pelaelo.
However, it turns out even for this new leg of the case that Collins Newman & Co submitted their papers late. According to the last hearing on October 21 last year they were supposed to have provided their papers by November 25, 2015, but only did so on December 1, 2015.
This Wednesday Judge Kebonang asked the BoB legal team to go back and reformulate their new position.
Pelaelo explains the failure in detail, ultimately blaming a junior legal officer at the BoB, who succumbed to a serious migraine and failed to submit the papers on time. Desai seeks to separate the law firm from Machinya. “For the sake of clarity I wish to record here that, in so far as Ms Machinya is culpable (it not being for me to make any determination or conclusions in this regard at this stage) she was certainly not acting on the instructions of either the BoB or Collins Newman & Co” he submitted to court.
Meanwhile, Minchin & Kelly Attorneys argue that the correspondence between the parties over the course of last year indicate that Collins Newman & has always been aware of the fact that Machinya had not submitted the original papers, contrary to their claim.
EBC Guernsey’s Stephen Wentzel argues that Collins Newman & Co should have always known that their lawyer had not submitted, therefore no new circumstances have been revealed. He refers to an email written to Pelaelo by Machinya, on June 23, 2015, in which she mentions that they have not filed their papers. In it Machinya says “Minchin & Kelly Attorneys and us will appear before the Registrar of the High Court on a date suitable to both of us to argue and settle the security for costs, once this has been settled BoB will have 10 days to file an appearance to defend”.
“(This email) is very significant and brings about a turn of events. This document was known to the applicant and to Mr Desai since inception of the rescission application (although they deny any appreciation or recollection of its import at that time)” adds Wentzel. This Wednesday Judge Kebonang asked the BoB legal team to go back and reformulate their new position, making allowances for their new legal direction.
