Choppies CEO accuses PwC of smear campaign
The P450 million legal battle between Pricewatercooperhouse-Botswana (PwC) and auditing Partner Rude Binedell against Choppies Enterprises Limited major shareholders continues to spill a can of worms on the two parties.
Ramalepa Attorneys representing Ottapathu Ramachandran and Farouk Ismail argues that the application by PwC is irregular, improper and an abuse of the process of the court in that it is tantamount to a disguised ‘review’ of the decisions made by Justice Boipuso Makhwe. According to the lawfirm, PwC and Binedell have cited and are claiming costs orders against Justices Dr Kebonang and Boipuso Makhwe.
“As a matter of law, judges cannot and should not be sued and this is proscribed by Section 25 (1) of the High Court Act. The declaratory order sought by the Applicants, declaring all proceedings before Makhwe J a nullity, without any consequential relief, is incompetent. High court judges have no jurisdiction to declare proceedings of another judge of concurrent jurisdiction a nullity,” avers the lawfirm.
According to court records, on 14th August 2020, Ramachandran and Ismail as shareholders of Choppies instituted a claim for delictual damages against PwC and Binedell who were Choppies auditor and an auditing partner respectively. The Plaintiffs, Ramachandran and Ismail’s claim was for economic loss in an amount of approximately P450 million, being the loss in the value of the duo’s respective shareholdings. In essence they contend in the main action that: the defendants (PwC and Binedell) failed to finalise Choppies’ 2018 audit report timeously, in breach of a legal duty to do so, which duty is specifically owed to the Plaintiffs; the defendants did so on the pretext of there being material irregularities, which required forensic investigation, which delayed the finalisation of the audit.
That the defendants’ conduct was malicious and for an ulterior purpose, alternatively grossly negligent, alternatively negligent; and the defendants conduct resulted in Choppies issuing a press statement notifying the public of the delay in the audit, which in turn caused Choppies shares price to decline, resulting in the plaintiffs suffering a loss in the value of their shares in Choppies.
The defendants deny that they acted wrongly and culpably, and that this caused a loss. The main action is yet to be heard.
In the present case PwC and Binedell want the High Court to declare a nullity all decisions of Justice Makhwe arguing that they were biased and were written by Justice Dr Kebonang.
Choppies Chief Executive Officer Ramachandran argues in his affidavit that PwC and Binedell embarked on a smear campaign in which they challenge his integrity and that of Ismail and the two High Court judges. In doing so, the defendants have filed affidavits on oath, ostensibly setting out ‘facts’, but which are nothing more than unfounded opinions, innuendo, and baseless conjecture, he said.
“The application is an unreserved and unrestrained attack on the integrity of the judges cited and Botswana judiciary. It is, no doubt, designed to create a spectacle before the media, which is ironically part of the complaint levelled by the defendants,” he said adding that this application is entirely self-serving, improper, and abusive.
According to Ramachandran, apart from the abusive nature of the application, it is also devoid of any facts or admissible evidence. He stated that the defendants have failed to demonstrate any actual bias, or an objectively reasonable perception or apprehension of bias at all.
In response to Binedell’s founding affidavit, Ramachandran said there is no process contemplated or permitted in law for the ‘review’ of the decision of a Judge, certainly no process that accommodates suing Judges without leave of the court.
“I am advised that if there are allegations of impropriety concerning a judge there is a specific procedure to deal with these complaints. The party concerned may submit a complaint to the chief justice who will investigate the complaints and take the necessary steps to deal with the Judge concerned”.
According to the Choppies CEO, the defendants rely on a memorandum dated December 2021 of Bank Gaborone. The defendants masquerade the Bank Gaborone memorandum as some sort of official report, he said.
“The allegations are scandalous and vexatious. They are also the product of inadmissible evidence. The allegations are entirely speculative and hearsay. They are replete with inadmissible opinion evidence on matters on which this court is called upon to simply accept. The Bank Gaborone memorandum is not any form of official ‘report’ and it is not the product of an investigation,” he said in his affidavit.