Jusice Dr Zein Kebonang keeps watch while two legal giants lock horns in near mortal combat. Staff writer TSHIRELETSO MOTLOGELWA sifts through the statements of both Collins Newman Senior Partner Rizwan Desai and EBC Guernsey’s Stephen Wentzel.
Collins Newman & Co has a complex legal maneuver to deliver – they have to convince a non-nonsense judge Kebonang that when their former Associate Bongani Machinya allegedly forged court documents, nobody within the law firm knew about it, that there is no way anyone could have known about it, further still that even if anybody knew about it, the court should not abort the law firm’s appeal against a default their client Bank of Botswana suffered against the creditors of the defunct Kingdom Bank. However the Collins Newman magic maneuver would not just be to distance themselves and their client from their former Associate, but to now, distance themselves and their client from their own earlier sworn statements, that the law firm did submit their papers to challenge the default judgment on time.
The danger for Collins Newman is that, the court has already made a determination on the matter of the submission of the papers, Kebonang has declared that the forgery allegations against Machinya which Collins Newman chose to concede earlier in the case, stand. Furthermore the judge has also declared that the law firm cannot successfully extricate themselves from the work of Machinya. However Collins Newman & Co is not asking the court to reject that earlier position of conceding the fraud allegations, but rather wants the court to abandon the legal team’s whole earlier position. In legal terms they call it, “changed circumstances”.
It’s more like severing conjoined twins at the heart. On the other side, Minchin & Kelly argues that the whole case should be seen in a holistic manner, not a technical piece by piece way. They argue that Machinya was an integral part of the Collins Newman, that the law firm cannot claim immunity from the repercussions flowing directly from her actions, and that they were her ultimate supervisors, and thus what she did or did not do, was part and parcel of the work of Collins Newman & Co. Furthermore they argue that, the law firm could not have been unaware of the events around the Bank of Botswana vs Guernsey case when countless meetings were conducted between the two law firms on the allegations of the fraud alleged to have been committed by Machinya. They contend that the judge is being asked to separate things that cannot be and should not be separated. Central to the case is the matter of timelines, of what was known when by who, which lies central to the case.
In any case Collins Newman has exceeded the stipulated numbers of affidavits that they are allowed to file.
Deputy Governor Moses Pelaelo in his papers motivating the request by Collins Newman to expunge their original position on the submission of the papers, from the case altogether, argues that circumstances have changed. He says it was always the intention of the Bank of Botswana to defend the default judgment against it and given that they are now aware that Machinya had been misleading them about the her submission they are entitled to pursue their case against the default judgment. “The change in circumstances is that prior to the delivery of the replying affidavit Ms Machinya insisted that she properly filed the notice of appearance to defend, and that the default judgment against Bank of Botswana therefore should not have been granted. Accordingly the Bank of Botswana will no longer seek the recission of the default judgment against it on the basis that the notice of intention to defend was in fact duly delivered” he argues.
Desai tells the story of how he came to realize that, he argues, Machinya maybe have been misleading them. Desai argues that the case of EBC Guernsey was always that the two were in dispute as to whether the papers had been submitted. He says he thought with the revelations that the papers were never in fact submitted they should be allowed to argue the rest of the case, being the actually opposition to the default judgment.
“The Bank of Botswana as the litigant in the main application, had made clear that it did not contest the version forwarded by EBC and could not do so owing to the lack of its personal knowledge in this regard. In the evnt no dispute between the Bank of Botswana and EBC existed and no purpose could be served by leading evidence of any individual to the exclusion of the sole person who has any personal knowledge in this regard –being Ms Machinya” argues Desai.
Wentzel comes out blazing, dismissing Desai’s position. He says there are no changed circumstances contrary to what Collins Newman & Co contends. “The applicant for rescission was launched on 28th July 2015. The applicant relied on the allegation that the appearance to defend had been delivered. Whilst I accepted that the applicant relied on the word of Ms Mchinya in this regard, it must be borne in mind that the applicant had already been placed on notice that the authenticity of the document had been questioned” he says. He says according to the timelines, both Collins Newman & Co and Bank of Botswana must have known that the papers had not been filed by as early July 2015, because Machinya wrote a letter stating so to Bank of Botswana. Taking into account this and the various meetings between the parties, where the issue of forged documents was raised by Minchin & Kelly it does not make sense, Wentzel argues, that Collins Newman & Co and Bank of Botswana would not have doubted Machinya’s assertions that she had filed the papers.
“Accordingly on 5th August 2015, both Mr Desai and Mr Pelaelo knew that the applicant’s assertion that the appearance to defend had been delivered was “completely implausible”. This was the most logical and only reasonable conclusion in the circumstances at the time and this concern would also have been conveyed by Mr Desai to Mr Tafa. Mr Desai’s concern would surely also at the time have been conveyed by Pelaelo to other senior colleagues who retained an interest in the matter” he concludes.
Wentzel says they are opposed to any new inclusion of papers, and a new dismissal of the original position of Collins Newman & Co. He warns that the ten-day deadline that Collins Newman & Co should have submitted their papers after the end of year court session, had already elapsed when the law attempted to submit. He maintains that Collins Newman & Co has no respect for the court orders and has a penchant for litigating through letters.
“Despite the urgency of the matter the applicant simply says that it was only able to convene a teleconference to discuss comments (on client’s affidavits) on 24th November 2015. It does not explain why matters were left so late or why this could not have been done the previous day. It does not explain why its attorneys were not capable of attending to the suggested changes themselves” he says.
In any case Collins Newman has exceeded the stipulated numbers of affidavits that they are allowed to file.