Thekiso & Nova Africa JV v Ulsan Botswana (Pty) Ltd
INTRODUCTION
In a judgment delivered in Gaborone on 28 May 2026, the Court of Appeal of Botswana unanimously upheld appeals by the Liquidator of Mupane Gold Mining (Pty) Ltd and the successful bidder, Nova Africa Resources / Aone Commodities DMCC Joint Venture (“Nova Africa JV”), setting aside an interim interdict that had halted the liquidation sale of Botswana’s only gold mine.
The judgment addresses several important insolvency law issues, including:
the standing of a disappointed bidder to challenge a liquidator’s conduct;
mandatory joinder of creditors in liquidation proceedings;
the requirement for leave under section 376(a) of the Companies Act; and
the balance of convenience in interdict applications affecting winding-up proceedings.
At the centre of the dispute was a stark commercial contrast. Ulsan Botswana (Pty) Ltd offered USD 500,000 (with a conditional upside to USD 10 million) for the mine assets, while Nova Africa JV offered USD 21.5 million payable in full on completion. Creditors, including former employees whose unpaid wages had triggered the liquidation, unanimously approved the higher bid. Ulsan challenged the outcome successfully in the High Court, but that decision has now been decisively overturned.
“Quite evidently Ulsan was nothing but a grumpy loser with no conceivable right to protect, let alone a prima facie one, but intent on frustrating the liquidation process on the back of whimsical grounds.”
– Lesetedi JA, para 63
BACKGROUND
Mupane Gold Mining was placed under final liquidation on 13 February 2025 following an application by the Mineworkers’ Union on behalf of unpaid employees. Kopanang Thekiso, initially appointed provisional liquidator in November 2024, was confirmed as Liquidator.
At a creditors’ meeting on 20 May 2025, resolutions were passed authorising the Liquidator to dispose of the company’s assets at his discretion in the best interests of creditors.
The Liquidator subsequently issued a Request for Offers (“RFO”), with bids closing at 1600 CAT on 15 June 2025. Two bids were received: one from Ulsan and one from Nova Africa JV. At a creditors’ meeting on 26 August 2025, the Liquidator recommended acceptance of Nova Africa JV’s substantially higher bid, which creditors unanimously approved.
Ulsan complained to the Master of the High Court, alleging among other things that the bid deadline had unlawfully been extended from 13 June to 15 June 2025 to accommodate Nova Africa JV’s bid. The Master declined to intervene. Ulsan then launched urgent proceedings seeking an interim interdict pending a judicial review of the Liquidator’s conduct.
THE HIGH COURT DECISION
On 13 October 2025, the High Court dismissed the preliminary objections raised by the appellants and granted an interim interdict restraining:
the Liquidator, Nova Africa JV and the Master from concluding or implementing the sale; and
the Minister of Minerals and Energy from approving the transfer of mining licences.
The appellants appealed on an expedited basis. Before addressing the merits, the Court of Appeal dismissed a procedural challenge by Ulsan regarding the validity of the notices of appeal, holding that the issue had already been resolved and the Court was functus officio.
ISSUES ON APPEAL
The Court considered five principal issues:
whether leave under section 376(a) of the Companies Act was required before instituting the proceedings;
whether the creditors were necessary parties whose non-joinder was fatal;
whether the interdict effectively amounted to a stay of liquidation proceedings under section 390;
whether Ulsan had locus standi; and
whether the requirements for an interim interdict had been met.
LEAVE OF COURT: SECTION 376(a)
Section 376(a) of the Companies Act prohibits the commencement or continuation of any “action or proceeding” against a company in liquidation without leave of court.
The High Court held that interim interdicts were merely preservatory remedies and therefore fell outside the provision. The Court of Appeal disagreed.
Unlike authorities dealing only with the term “action”, section 376(a) also refers to “proceeding”, which the Court held was intentionally broader. Applying ordinary principles of statutory interpretation, the Court concluded that interim interdict proceedings fall squarely within the leave requirement.
The Court also rejected the argument that urgency under Order 12 rule 12 of the High Court Rules could override the statutory requirement. Subsidiary legislation cannot dispense with obligations imposed by primary legislation.
FATAL NON-JOINDER OF CREDITORS
The Court held that the creditors were necessary parties whose rights would be directly and substantially affected by the proceedings.
By the time the interdict application was launched, the creditors had already resolved to accept Nova Africa JV’s offer. The decision under challenge was therefore not merely the Liquidator’s recommendation, but the creditors’ own decision.
Because the relief sought would directly affect creditors’ interests in maximising recovery from the estate, their absence from the proceedings rendered the application fatally defective.
“Their non-joinder was fatal and rendered the interim interdict proceedings a nullity.”
– Lesetedi JA, para 40
LOCUS STANDI: THE DISAPPOINTED BIDDER
The Court’s treatment of locus standi is likely to be the judgment’s most commercially significant aspect.
Under section 465(3) of the Companies Act, an “aggrieved person” may review a liquidator’s decision. The issue was whether Ulsan, as an unsuccessful bidder, qualified as such.
Relying on Sherashiya (Pty) Ltd v VRI Metal Industries and the UK Supreme Court decision in Brake v The Chedington Court Estate Ltd [2023] UKSC 29, the Court adopted a narrow interpretation of “person aggrieved”. Creditors and contributories plainly qualify; outsiders must demonstrate an adverse effect on a legal right.
The RFO expressly stated that:
submission of a bid created no rights in favour of bidders;
the Liquidator retained sole discretion to accept or reject offers; and
the Liquidator would accept whichever offer best served creditors’ interests.
Having participated on those terms, Ulsan could not claim any protectable legal right arising from the rejection of its bid.
The Court held that Ulsan was simply a disappointed bidder “hopelessly out-bidden” by Nova Africa JV and therefore lacked standing.
THE MERITS: BALANCE OF CONVENIENCE
The Court further held that the High Court had materially misdirected itself in assessing the balance of convenience.
The High Court focused narrowly on preserving Ulsan’s review remedy, without properly considering the broader liquidation context. Relying on National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18, the Court emphasised that the balance of convenience requires a holistic assessment.
Relevant considerations overlooked by the High Court included:
the interests of former employees awaiting payment;
the financial burden of delay on the estate;
deterioration risks affecting the mine assets;
the substantially higher value of Nova Africa JV’s bid;
the need for expeditious winding-up proceedings; and
the public interest in the integrity and finality of liquidation processes.
The Court concluded that these considerations overwhelmingly favoured allowing the liquidation to proceed.
OUTCOME
The Court:
upheld the appeals with costs;
set aside the High Court decision in full; and
dismissed the interdict application.
Although the Court described the application as frivolous and lacking legal foundation, it declined to award punitive costs, accepting that the High Court had genuinely entertained the matter.
SIGNIFICANCE
The judgment makes several important contributions to Botswana insolvency jurisprudence.
First, it confirms that section 376(a)’s leave requirement applies to interim interdict proceedings in liquidation matters.
Second, it clarifies that unsuccessful bidders in liquidation sales generally acquire no enforceable rights merely by participating in the process, particularly where the RFO expressly excludes such rights.
Third, it reinforces the centrality of creditors’ interests in winding-up proceedings. Creditors are not passive observers, and any challenge affecting their decisions or interests requires their joinder.
Finally, the judgment signals that courts should approach attempts by commercial outsiders to halt liquidation proceedings with considerable caution. Applicants seeking such relief must establish a compelling case that outweighs the interests of creditors, employees, the estate, and the broader public interest in efficient winding-up processes.
Botswana’s property law framework continues to evolve with the Deeds Registry (Amendment) Bill, 2026 (Bill No 13 of 2026) (“the Bill”), which proposes the introduction a number of practical reforms and amendments aimed at aligning the law with judicial precedent, correcting historical anomalies and improving the administration of land rights.
Although the proposed amendments are technical in nature, their impact will be significant for property owners, lenders, developers and legal practitioners.
Recognition of Spouses Married in Community of Property
One of the most notable amendments in the Bill is the expanded definition of “owner” to expressly include spouses married in community of property, in order to allow a spouse (married in community of property) who is not the registered title owner on the title deed but their spouse, to be equally able to register bonds directly using such title deeds without necessarily requiring that only the spouse whose name appears on the title deed be the one to register such a bond.
This amendment gives statutory effect to the decision of the Court of Appeal in NDB v Seabelo Maje (CACGB-203-21), which clarified the proprietary interests of spouses married in community of property in relation to immovable property and the registration of mortgage bonds. It also aligns with the Registrar of Deeds Circular No. 1 of 2024, which was issued following that judgment to guide deeds registry practice pending legislative reform.
In practical terms, the amendment strengthens legal certainty by recognising that property forming part of a joint estate may require the participation, consent or acknowledgement of both spouses in transactions involving transfers, mortgage bonds and related real rights.
For banks, lenders and conveyancers, this codification eliminates uncertainty when taking or registering security over immovable property.
Registrar’s Powers Relating to Antenuptial Agreements
The amendments also grant clearer powers to the Registrar of Deeds in relation to the regulation of antenuptial contracts and related matrimonial property instruments.
This is expected to streamline deeds office procedures where marital property regimes affect ownership, transfers or the registration of security interests. It should also reduce administrative uncertainty where documentation must be lodged to confirm whether property forms part of a joint estate.
Registrar’s Powers Relating Practice Circulars
The amendments also grant clearer powers to the Registrar of Deeds and expressly empowers the Registrar to issue circulars to provide guidance on deeds registry practice and procedure. This is a significant development, as such circulars have historically played an important practical role in standardising registry requirements and addressing operational issues.
Formal recognition of this power should improve consistency, administrative efficiency and responsiveness to evolving legal developments.
Correction of Historical State Land Title Anomalies
A further important reform addresses long-standing anomalies concerning the grant of State land titles for fixed periods.
Historically, certain title conditions and tenure arrangements created inconsistencies in registration practice. The amendments seek to regularise these issues, bringing greater clarity to holders of fixed-term State grants, developers and institutions financing leasehold land.
This is likely to be particularly relevant in commercial, tourism and urban development projects where State land tenure structures are common.
Ancillary Corrective Amendments
The Bill also contains various supporting amendments intended to improve the overall functioning of the deeds registry system. These include technical corrections, clarification of procedures and removal of outdated inconsistencies in the legislation.
While less visible, these changes are often essential in reducing delays and avoiding disputes in practice.
Collectively, the amendments should:
Improve certainty in secured lending transactions
Align deeds registration with matrimonial property law
Assist in regularising historic title issues
Reduce administrative bottlenecks at the Deeds Registry
Support confidence in Botswana’s property market
Armstrongs’ View
These amendments introduced through the Bill reflect a welcome effort to modernise Botswana’s land registration framework while addressing practical issues that have affected transactions for many years. In particular, the recognition of community of property interests and the correction of historic State title anomalies are likely to have immediate real-world impact. The proposed changes are a positive development, and it is hoped that the Bill will be passed and implemented in due course.
How Armstrongs Can Help
Armstrongs through its Conveyancing Department advises clients on:
Reckless trading is not expressly defined in Botswana’s Companies Act (the “Act”) or in any other legislation.
However, in broad terms, it may be described as carrying on business, or incurring further obligations, in circumstances where there is no reasonable basis for believing that the company will be able to meet those obligations as they fall due. It is not limited to fraud or deliberate misconduct, and may also arise from negligent conduct, willful blindness, or a serious disregard of the company’s financial position and the risk of prejudice to creditors.
In today’s economic climate, many companies face increasing financial strain. Cash flow tightens, creditors apply pressure, and directors are required to make difficult commercial decisions. In such circumstances, it is often tempting to continue trading in the hope that the company’s position will improve. However, once a company is no longer able to meet its obligations, or is clearly heading towards insolvency, the legal position changes fundamentally.
In terms of the Act, directors occupy a fiduciary position and are subject to strict legal duties. Section 130 requires directors to act in good faith and in the best interests of the company, while section 158 requires them to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. These duties require active oversight of the company’s financial position and informed decision making at all times.
A company is not solvent simply because it continues to operate. It must be able to pay its debts as they fall due, and its assets must exceed its liabilities. Once this is no longer the case, the focus of directors shifts away from shareholder value and towards the protection of creditors.
The Act creates clear mechanisms through which directors and officers may be held personally liable where that shift is ignored. Section 160 of the Act provides that a director who is knowingly party to the company incurring a debt without a reasonable or probable expectation that it will be paid may be required to compensate for the resulting loss. In addition, section 158 exposes directors to civil liability where they fail to act with the required level of care, diligence and skill.
The position becomes even more acute once a company is placed under liquidation or judicial management, as its affairs then come under greater scrutiny.
Once appointed, a liquidator or judicial manager will investigate the affairs of the company for the purpose of recovering value for the benefit of creditors, including by pursuing individuals involved in the conduct of its business.
Section 481 of the Act empowers the court, on the application of a liquidator, judicial manager, or any interested person such as a creditor, to hold any person who knowingly participated in reckless or fraudulent trading personally liable, without limit, for all or part of the company’s debts.
This exposure is not confined to directors. It extends to any person who was knowingly party to the conduct of the business, including company officers and others involved in its management or affairs, and it does not require the company to be in liquidation or judicial management for the provision to apply.
The consequences are not only financial. In addition to personal liability, the High Court may, under section 501 of the Act, disqualify a person from acting as a director where that person’s conduct falls below the standard required of those entrusted with the management of a company.
This may arise where a director has, inter alia, persistently failed to comply with the Act or the Botswana Stock Exchange Act, breached duties owed to the company or its stakeholders, engaged in fraudulent conduct, acted in a reckless or incompetent manner, or was responsible for a company being forced into insolvency, restructuring, or winding up due to its inability to meet its obligations.
Such an order under section 501 may prohibit that person, without leave of the court, from acting as a director or promoter of, or being involved, directly or indirectly, in the management of a company for a period not exceeding five years, with significant implications for future directorships and professional standing.
In practice, the risk of personal liability rarely arises from a single decision. Rather, it develops over time. It often begins with mounting pressure on cash flow and an increasing inability to meet obligations as they fall due. This is frequently followed by a reliance on new credit to sustain operations, decisions taken on the basis of uncertain or informal funding arrangements, and a gradual erosion of financial discipline.
Certain patterns also tend to emerge. These include a failure to maintain proper accounting records, the absence of reliable financial information, the use of company funds for purposes outside the ordinary course of business, and the continued incurring of obligations in circumstances where there is no clear basis for repayment.
The Act does not seek to penalise honest commercial judgment. It does, however, require directors to act in good faith, exercise reasonable care, diligence and skill, and ensure that decisions are properly informed and documented. In practical terms, this requires directors to maintain sufficient oversight of the company’s financial position, to interrogate the basis upon which obligations are incurred, and to act decisively where financial distress becomes apparent. This may include obtaining appropriate legal, financial, or restructuring advice at an early stage.
Reckless trading is not simply about business failure. It arises where financial reality is ignored and creditors are exposed to risk without a reasonable basis. Once insolvency sets in, the risk no longer rests with the company alone. It may shift to the individuals behind it.
On the 1st December 2025, the Employment and Labour Relations Act, 2025 was published in the Botswana Government Gazette.
Key dates to note:
Date of Assent:27th November 2025
Date of Commencement:On Notice
The publication of this Act marks a significant milestone in the ongoing reform of employment and labour relations law in Botswana. Once brought into force, this Act will have wide-ranging implications for employers, employees, trade unions, and practitioners across the labour and employment landscape.
The changes are significant and will materially change the employment and labour law landscape of Botswana.
Stakeholders are advised to ensure full compliance with the new legislative framework in anticipation of the commencement notice which may be issued any day.
Get in touch with our Employment and Labour Law Team to get up-to date with the changes in Botswana’s labour law space and to understand how these changes will impact your business:
Introduction
When demand letters and follow-ups fail, many creditors turn to the courts. But as many discover, a judgment is only as good as its enforcement. Whether you’re a company, landlord, bank or individual, recovery doesn’t end with a court order, it begins with it. That final step, the one that turns your court victory into actual payment, is where Deputy Sheriffs come in.
With the new Deputy Sheriff’s Act, 2024 and its Regulations, Botswana has transformed the legal framework for enforcing court orders. These changes bring greater oversight, transparency and professionalism, offering creditors a more reliable path to getting paid.
Key Changes Creditors Should Know
1. Structured Oversight and Regulation
Previously, Deputy Sheriffs were appointed under Section 18 of the High Court Act (CAP 04:02) by the Registrar of the High Court. The Registrar also served as Sheriff and was responsible for their supervision. This was an arrangement with no clear statutory framework. There were no qualification requirements, no formal register of Deputy Sheriffs and no built-in accountability mechanisms.
Now, under Part II of the new Act (sections 3 – 4), the Sheriff is a standalone public official appointed by the President to oversee the profession. The Sheriff’s functions include maintaining the register of Deputy Sheriffs, issuing and renewing practising certificates, resolving public complaints against Deputy Sheriffs, inspecting and approving storage facilities for attached property and assessing reports from Deputy Sheriffs.
Working alongside the Sheriff is the Board of Deputy Sheriffs, established under Part VIII (sections 19 – 30). The Board recommends suitable candidates for appointment as Deputy Sheriffs, issues Fidelity Fund certificates, manages the Fidelity Fund, inspects compliance with the Code of Conduct and professional standards. It can also investigate complaints and establish specialist committees to assist in oversight.
Together, the Sheriff and Board of Deputy Sheriffs replace a fragmented structure with a clear, institutionally governed framework, ultimately giving creditors more confidence in who they are instructing.
2. Financial Safeguards and the Fidelity Fund
One of the most important reforms is the introduction of statutory financial safeguards.
Under section 18 of the new Act, Deputy Sheriffs must operate a separate trust account for client monies. These accounts must be audited annually, and interest that accrues to the trust account must be paid into the Fidelity Fund. The money in these accounts is protected by law and cannot be treated as the Deputy Sheriff’s personal or business assets, even in the event of that Deputy Sheriff’s death or insolvency.
In addition, Part XI (sections 41 – 47) establishes the Fidelity Fund for Deputy Sheriffs. No Deputy Sheriff may lawfully practise without holding a valid Fidelity Fund certificate, which is issued and renewed annually (section 49). The certificate is issued by the Board of Deputy Sheriffs upon application and payment of a prescribed fee (sections 42, 48 and 50). The Fund is financed through prescribed levies, application fees, interest from trust accounts and income from investments (section 43). It may be used to compensate persons who suffer loss or hardship due to dishonesty or misconduct by a Deputy Sheriff or their employee (section 45).
If funds are misused or delayed, creditors now have a clear statutory route to claim compensation under section 45, instead of attempting to claim same through a long civil suit. This combination of trust accounts and a Fidelity Fund provides both preventive and remedial protection.
3. Qualifications, Licensing and Removal
Under sections 5 – 8, only applicants who hold a certificate in law, commerce, accounts, tracing, auctioneering or a related field may be appointed as Deputy Sheriffs (section 7). These requirements ensure that Deputy Sheriffs have a baseline understanding of the legal, commercial or financial principles necessary for executing judicial mandates responsibly. Disqualifying factors include prior convictions for dishonesty, insolvency, dismissal from a position of trust or past misconduct (section 8).
Under sections 14 – 17, Deputy Sheriffs must also hold a practising certificate, issued annually by the Sheriff. If they fail to renew, or breach the Code of Conduct, they may be removed from the official register.
The profession is now tightly regulated and only those who meet legal, financial and ethical standards may remain in practice.
4. Code of Conduct, Tariff Caps and Complaint Procedure
The Deputy Sheriffs Regulations, 2025 (S.I. No. 33 of 2025) introduce a Code of Conduct (Schedule 3) and a fixed tariff schedule (Schedule 2). Both are designed to protect clients and creditors from abuse or uncertainty.
The Code of Conduct requires Deputy Sheriffs to act with diligence, use only reasonable force, avoid property damage during enforcement, and most importantly for creditors, remit client funds without delay or unauthorised deductions. These obligations are enforceable and failure to comply can result in suspension or removal.
The tariff system standardises Deputy Sheriffs’ fees. Execution of a writ against immovable property, for example, is now capped at BWP 2,000.00, with travel and service charges clearly regulated. If enforcement is withdrawn or becomes unnecessary due to insolvency, the Deputy Sheriff may claim 1.5% of the writ amount, making the costs predictable even where full recovery has not been achieved.
In addition to the above, procedures governing how execution and civil imprisonment are to be carried out are set out in the Deputy Sheriffs (Execution) Regulations, 2025 (S.I. No. 34 of 2025) and the Deputy Sheriffs (Procedure for Civil Imprisonment) Regulations, 2025 (S.I. No. 32 of 2025).
When a Deputy Sheriff fails to comply with the procedures or standards set out in the Regulations, creditors now have a formal complaint procedure to turn to. In terms of Regulation 9 of the Deputy Sheriffs Regulations (S.I. No. 33 of 2025), complaints against a Deputy Sheriff may be lodged with the Board of Deputy Sheriffs using a prescribed form (Form 6, Schedule 1). Complaints may also be forwarded to the Board by the Judicial Service Commission, a court or a member of the Administration of Justice. If the Board finds the complaint reasonable, it may initiate a hearing, order a refund of unaccounted funds, suspend the Deputy Sheriff’s certificate or refer the matter for prosecution or civil action (Regulation 10).
Conclusion
The Deputy Sheriffs Act, 2024 represents a significant shift from a loosely regulated enforcement environment to one that is professionally governed, financially accountable and protective of creditors’ interests. With stronger oversight, predictable costs and legal protections for recovered funds, creditors can now enforce their rights with greater speed, security and confidence.
Deputy Sheriffs who were operating under the old system have been given a 12-month window from the commencement of the Act to align with the new requirements. After that, they must be fully licensed under the new regime to continue practising. This transition ensures continuity while reinforcing the expectation that all enforcement is now subject to a more reliable legal framework.
