• Corporate law firm concedes allegations against it
• Partner Rizwan Desai writes confessional affidavit
• Judge Kebonang delivers a damaging order
• Law firm attempts to dump implicated lawyer
One of the biggest corporate law firms in the country Collins Newman & Co, this week dropped a bombshell when it accepted allegations that it falsified court documents. In a surprise turn of events in the case in which their client Bank of Botswana is attempting to halt a default judgment delivered against the state bank in favour of EBC Guernsey, the corporate legal giant accepted allegations that its Associate lawyer Bokani Machinya falsified court documents in an attempt to get the case overturned. While Desai delivered his affidavit on Monday this week, on the eve of the court proceedings, the court on Wednesday proceeded with High Court Judge Zein Kebonang delivering a hard-hitting court order against the law firm.
The turn of events is a climax to a series of twists and turns in a marathon case in which Bank of Botswana (BoB), through its lawyers Collins Newman, is seeking to stop EBC Guernsey from attaching BoB’s property to reclaim a P27m debt arising from the winding up of the defunct Kingdom Bank Limited (KBAL). Desai’s affidavit, and in arguments led by lawyer Advocate Ana Milovanovic for Bank of Botswana, admitted to all the allegations of forgery against the law firm. However leading her argument, Milovanovic sought to extricate not just the Bank of Botswana but the law firm Collins Newman, from the actions Machinya is said to have committed.
The late submission by Collins Newman & Company was the reason for a default judgment in the sum of P40 million being granted against Bank of Botswana.
Collins Newman & Company, was accused of forging a High Court stamp, in order to circumvent the deadline for submission of court papers that had lapsed. In its case EBC Guernsey lawyers Minchin & Kelly brought the South African veteran handwriting expert, Gerhard Cloete, who concluded that the High Court stamps impressed on documents purportedly signifying BoB’s intention to defend the suit submitted to the Registrar of the High Court by Collins Newman & Company, had been forged by a photocopy superimposed on the court papers from another court document.
The late submission by Collins Newman & Company was the reason for a default judgment in the sum of P40 million being granted against Bank of Botswana, The Business Weekly & Review has gathered. The issue surrounding the time of submission of the said papers has been central to the legal tussle between two of the country’s most prominent law firms; Collins Newman fighting on the BoB corner and Minchin & Kelly representing EBC Guernsey, hence the focus on the High Court stamps. The default judgment granted against Bank of Botswana on the basis that the central bank failed to submit papers signifying BoB’s intention to defend the EBC Guernsey’s suit over the company’s losses resulting from the alleged mismanagement in winding up of Kingdom Bank.
Desai urged court to abandon the hearing on allegations of forgery now that Collins Newman and Bank of Botswana were no longer denying the case by Minchin & Kelly, and EBC Guernsey. Before the surprise affidavit this week by Desai, the last few months Collins Newman, had maintained that their papers were submitted on time. They argued that they submitted their papers on the 19th of June, more than a month before the default judgment. High Court Assistant Registrar, Bafi Nlanda was said to have sent a letter on the 27th June vouching for the authenticity of the submission by Collins Newman & Company.
Minchin & Kelly seemed to have forced matters to a head for Collins Newman’s case when in the lead up to this week’s session they subpoenaed more witnesses including BoB Deputy Governor Moses Pelaelo, High Court officers Lentle Mabelebele of Civil Registry and Lame Otlaadisa who manages the Case Managemnt System at the High Court. Of particular importance to the case seemed to have been Otlaadisa’s affidavit which submitted a few weeks ago, in which she revealed that, although the papers by Collins Newman were submitted later, they were backdated to an earlier date. The High Court computer system however automatically generates the date of submission regardless of the date the entering officers puts into it. Before court could proceed, Kebonang concluded that in light of the concession by Collins Newman the witnesses had to be released.
Collins Newman & Company, was accused of forging a High Court stamp, in order to circumvent the deadline for submission of court papers that had lapsed.
In her submission on Wednesday, Milovanovic revealed that the law firm had conducted investigations subsequent to the break and leading up to this week’s session, which had compelled the law firm to abandon its initial position. However Milovanovic who accused Machinya of having engaged in a frolic of her own, sought to extricate the law firm and Bank of Botswana from the effects of Machinya’s actions. She argued that even if Machinya conducted herself in any improper way Bank of Botswana could not have known the details of it, but rather would have depended on her advice. When Kebonang asked if the Bank admitted that the document was fraudulent, she said it was not for the bank to determine so.
“It’s not for BoB to admit to admit to a fraud committed by any third party, in the party’s absence. BoB has no personal knowledge of such actions” she added.
Advocate Stais for Minchin & Kelly argued that it was a stretch to attempt to separate the law firm and the bank from Machinya. Stais argued that while it would been reasonable to call Machinya, they, as Minchin & Kelly, had no reason to call her, adding, “Why would we call Machinya to prove a fraud we could prove through an expert (Cloete)”. Stais advised that if anyone were to call Machinya it would have to be Collins Newman. Milovanovic however said they did not plan to bring Machinya to court, who she revealed, is on suspension.
At the end Kebonang, when delivering a court order at the end of the session, warned that the allegations against Machinya were serious and even criminal. He ruled that the court had no choice, without any contention from Collins Newman, but to uphold the veracity of the forgery case against the law firm. Kebonang condemned Collins Newman for having wasted the court’s time. “The court must show its disapproval”, he said, ordering that Collins Newman should pay the costs of this leg of the case on a punitive scale.
The fraud enquiry was part one of the long running case. The next phase which is the main case, is the application by Bank of Botswana to have the default judgment against them dismissed. Kebonang set the date for January next year. Bank of Botswana were represented by Milovanovic and Dineo Makati-Mpho of Collins Newman, while EBC Guernsey was represented Advocate Stais and Jayne Cross of Minchin & Kelly.