From heroine to villain
Siwawa- Ndai’s turbulent last moments at BBSL and fall from grace
It was an explosive Annual General Meeting ( AGM) for Botswana Building Society Limited ( BBSL) shareholders last Friday at Avani.
But for former chairman, Pelani Siwawa- Ndai, who was ejected together with her fellow members, the last moments of her tenure, were turbulent – she fell at the wink of an eye, from a heroine to a villain!
The big question is, did she mislead shareholders or was she being economic with the truth in her last address to the shareholders at the 2020 AGM when she announced that the muchawaited AGM will not proceed.
Her reason for cancelling the AGM was that there was no valid notice that was issued by BBSL in respect of the 2020 Annual General Meeting, in particular the AGM notice was distributed contrary to the requirements of the Companies Act.
Section 5, 12 and 13 of the Companies Act provide clearly that for any notice including a notice of AGM must be sent via facsimile transmission, post or physical delivery to such shareholder.
The AGM notice particularly as published on ex mute and print media did not meet documentary requirement set by the Companies Act or the listing requirements that any notice of an AGM must include among other things, copies of proxy forms, annual report and financial statement.
She said the AGM notice particularly as disseminated by email did not meet the time requirements set by the constitution which requires that written notice of the time and place of the meeting must be given to every shareholder not less than 21 days before the meeting.
Further that the bulk text messages sent to approximately 8000 shareholders did not qualify as a notice of the meeting in terms of the Companies Act or the constitution.
Botswana Guardian investigation has revealed that Siwawa- Ndai was economic with the truth in her brief on two fronts concerning how notice for the AGM must be disseminated. She failed to mention Clause 96 of the BBSL Constitution, part of which reads, “Service may also be done via written electronic communication”.
In fact, what has since come out is that the notice was properly made in line with the BBSL constitution that was adopted on 26th April 2018, a matter which shows that the immediate past board served for three years.
Its first page states that as part of the Demutualisation and Conversion of BBS to a company and as a necessary consequence stating thereof, BBS rules will be replaced by the Constitution for BBSL as has been prepared in compliance with the Companies Act, and will subject to the various Conditions Precedent, be registered by the Registrar of Companies.
The Constitution, inter alia, provides for the requirements of Sections 67B ( 1), ( 2) and ( 5) of the Building Societies ( Amendment) Act, 2014 regarding the aspects of Permitted Proportion and Protective Period.
Botswana Guardian has learnt that Section 96 to 98 of the same constitution states that Under Service ( section 96), a notice may be served by the Company upon any director or shareholder, either personally or by post or by fast post in a pre- paid envelope or package addressed to such director or shareholder at such person’s last known address or by delivery to a document exchange or by facsimile to the facsimile number of such director or shareholder or by written electronic communication to the last known electronic address or number of such director or shareholder.
While section 97 under time of service by written electronic communication and facsimile a notice served by facsimile or written electronic communication is deemed to have been served on the day of its transmission.
Section 98 under time of service by post, states that a notice sent by post or delivered to a document exchange is deemed to have been served: in the case of a person whose last known address is in Botswana, within seven days of date of mailing the envelope or package containing the same was posted or delivered in Botswana; and in the case of a person whose last known address is outside Botswana, at the expiration of seven days after the envelope or package containing the same was posted by fast post in Botswana.
The constitution reads at Section 99 under proof of service in proving service by post or delivery to a document exchange, it is sufficient to prove that the envelope or package containing the notice was properly addressed and posted or delivered with all attached postal or delivery charges paid.
In proving service by facsimile or written electronic communication, it is sufficient to prove that the document was properly addressed and sent by facsimile or written electronic communication was properly addressed and posted or delivered with all attached postal or delivery charges paid.
This publication has also established that although Siwawa- Ndai told the shareholders that in total there are 14 906 of them who have to attend the meeting after being notified, the fact is, out of the stipulated number, BBSL is unable to locate the whereabouts of 8,700 shareholders and the management has since drafted the services of the National Registration Officer seeking assistance to trace such shareholders.
Botswana Guardian has it in good authority that the management took this action following a resolution by the former board that also called for the creation of the BBSL Trust in which shares would be held for shareholders that have not been traced.
The said Trust account is reported to be holding over P620 000 which is the amount that will be dispersed accordingly once the shareholders have been identified.