ZAC Construction may soon smile all the way to the bank after the Ministry of Transport and Communications caved in after the contractor of Charleshill-Ncojane road lodged a dispute with the Dispute Adjudication Board (DAB) demanding compensation.
If successful ZAC Construction will get a possible P70 million award and another P20 million from an initial claim against the Ministry of Transport and Communications. Reports suggest that while ZAC has made compelling submissions before the Board, the Ministry is somewhat cold and submissive. An attempt by Department of Roads to submit a constructive written response was denied while ZAC Construction was allowed to supplement its earlier filing.
Nicholas Zakhem’s company has made three claims before the Dispute Adjudication Board, with the first dealing with “Costs for the initial delay”. In its response the Roads Department notes that “If and only if the DAB finds that the Contractor’s referral has merit, in order to save time the Employer has reviewed the Contractor’s computation of costs and confirms it is correct. “ Before stating as captured above the Department confirms that the Contractor (ZAC) has agreed to the extension of time granted and that this is not in dispute.
“The point of principle is should the Contractor be paid,” they write, while also stating that the Engineer, who they have since fired, determined the Contractor has no entitlement to compensation. In the second claim, ZAC Construction is querying the “Change to vertical alignment”. The contract is a design and construct contract. The Department of Roads notes that “the point of principle regarding claim 2 is whether the Engineer’s instruction to increase the vertical alignment is a variation.” Again, the Ministry states, “If and only if the DAB finds that the Contractor’s calculation of the extension of time and computation of costs and confirms it is correct.”
The third claim deals with the “Pre-collapse treatment. “The point of principle regarding Claim 3 is the Engineer’s time-barring. The Fidic contractual provision for time-barring is covered under clause 20.1. As is the standard response, the Department of Roads writes, “If and only if the DAB finds that the Contractor’s referral has merit, in order to save time the Employer has reviewed the Contractor’s computation of costs and confirms that it is correct.” The DAB is chaired by Mr Jeffrey Bookbinder of Bookbinder Business Law.
COURT BATTLES ONGOING
The dispute around the Charleshill-Ncojane road are also playing themselves out in the courts where the permanent secretary in the Ministry of Transport and Communication, Kabelo Ebineng is compelled to defend his 20 year friendship with businessman Nicholas Zakhem who convinced him to terminate a contract for a Consultant engaged in the construction of the Charles Hill- Ncojane road.
ZAC Construction, whose Managing Director is Zakhem is the contractor in the project. The two parties are throwing jabs of conflict of interest at each other and the permanent secretary has stated that he has even borrowed money from Zakhem, a red flag already observed by the consultant, Bothakga Burrow and other players in the matter. It not clear what the role of the Permanent secretary is in the current claim before the Dispute Adjudication Board and how the members of this Board are appointed because the Ministry had not responded to our questions by the time of going to print.
It is not clear as to whether the dismissed Consultant Engineer will be given a chance to respond to some of the claims made by ZAC Construction because Bothakga was responsible for some of the decisions in question. From the beginning of the project, Zakhem had flatly refused to work with the Consultant, Bothakga Burrow Botswana (BBB) accusing them of being difficult to work with and later alleging conflict of interest on their part – they had tendered for the same project, he said. BBB was awarded the Consultant contract by the PPADB with the Ministry of Transport and Communications as the procuring entity.
As of 16 February 2018 Bothakga Burrow Botswana has dragged the Ministry of Transport and Communications before court accusing it of unlawfully terminating its contract. Ebineng terminated BBB’s contract with effect from 16 February 2018 citing convenience on the part of the Employer or procuring entity. But Bothakga is arguing that the Ministry did not follow the correct procedure when terminating the contract and the Public Procurement and Asset Disposal Board (PPADB) agrees with Bothakga.
Zac Construction was awarded the Charles Hill – Ncojane tender on 26th November 2013 for an amount of P436 279 046. 45 to be completed in 36 months on a design and build basis. In January 2017, sixteen months after commencement of construction Zac or Zakhem complains to the Ministry of Transport citing conflict of interest on the part of the consultant, Bothakga Burrow. His views are such that the consultant has not been properly appointed and he threatens to stop taking instructions from the Consultant and requests that Bothakga Burrow be removed from the project.
Records show that in May 2017, one month after the appointment of Kabelo Ebineng as Permanent Secretary at the Ministry of Transport, Zakhem restarts work after a four week unauthorized stoppage of work, and reconfirms that they will not work with the Consultant, Bothakga Barrow, and again he requested the removal of the Consultant.
What has irked Bothakga Burrow directors before their contract was terminated is that the Permanent Secretary at a meeting held on 19th June 2017 he confirmed that “he and Mr Nicholas Zakhem know each other socially. He mentioned that he has even had the opportunity to borrow money from him because of their relationship and they continue to have a relationship.” After this meeting Bothakga Burrow requested that Ebineng recuse himself from meeting dealing with the matter but he refused stating that there was no conflict of interest.
During the course of July 2017, construction was suspended by the consultant, because the contractor was no longer accepting project works to be tested, as per the contract, however the Contractor proceeded to construct 12km of road, whose quality could not be vouched for. Ebineng immediately requested Bothakga to withdraw the suspension and he instructed Zac Construction to proceed with construction work unsupervised. Records further show that by September 2017 the Parliamentary Committee on Communications, Works, Transport, and Technology, had visited the project site to understand the challenges on the project.
Shortly thereafter the Contractor on his own volition stopped construction on the project, and demanded to be paid for the 12km of road that he had refused to have tested. The Consultant was asked by the permanent secretary to certify payment for the 12km, and declined to do so without verifying the quality of works in accordance with the contract. Indications are that at some stage the Permanent Secretary to the President, Carter Morupusi intervened and advised that the project be executed in accordance with the signed contracts of all parties. In all meetings, Zac Construction requested that the Consultant be removed as a pre-condition to return to work on the project.
WeekendPost learns that by the end of 2017 the Ministry had paid Zac Construction for the 12km of untested road works; failed to test or verify the quality of the constructed work; acceded to the contractor’s request to remove the Consultant from the project; the permanent secretary has refused to recuse himself from dealing with the matter which he is said to be conflicted; the PPADB had notified him that his position is untenable.
Ebineng’s defense of his relationship with Zakhem is a simplified one. He states that he knows most of the contractors, engineers, and consultants that deal with his Ministry. He states that most of them he went with them to school, met them at play grounds, socializes with them hence he wonders if he will recuse himself for almost everyone in town. On the other hand allegations of conflict of interest on the part of Bothakga were dismissed by the PPADB but the Ministry through Ebineng held that conflict was inherent.
The two parties are now in court with Bothakga Burrow Botswana pleading with the court to reverse the unlawful decision of the permanent secretary. Bothakga Burrow Botswana’s contract is worth P40 million. Judge Rannowane gave both parties an ear on 16th March 2018 and will deliver judgement next month.
Some in the Ministry are worried that Ebineng’s actions are setting a bad precedent that will have far reaching consequences for the entire construction industry where contractors can pick and choose who they want to supervise them. They also raise a concern for the role of PPADB in awarding and terminating contracts, where government can willfully undermine its own laws and institutions.
While there is no hard-and-fast rule in politics, former Molepolole North Member of Parliament, Mohamed Khan says populism acts in the body politic have forced him to quit active partisan politics. He brands this ancient ascription of politics as fake and says it lowers the moral compass of the society.
Khan who finally tasted political victory in the 2014 elections after numerous failed attempts, has decided to leave the ‘dirty game’, and on his way out he characteristically lashed at the current political leaders; including his own party president, Advocate Duma Boko. “I arrived at this decision because I have noticed that there are no genuine politics and politicians. The current leaders, Boko and President Dr Mokgweetsi Masisi are fake politicians who are just practicing populist politics to feed their egos,” he said.
Former Botswana Democratic Party (BDP) parliamentary hopeful, Lawrence Ookeditse has rejected the idea of taking up a crucial role in the Botswana Patriotic Front (BPF) Central Committee following his arrival in the party this week. According to sources close to development, BPF power brokers are coaxing Ookeditse to take up the secretary general position, left vacant by death of Roseline Panzirah-Matshome in November 2020.
Ookeditse’s arrival at BPF is projected to cause conflicts, as some believe they are being overlooked, in favour of a new arrival. The former ruling party strategist has however ruled out the possibility of serving in the party central committee as secretary general, and committed that he will turn down the overture if availed to him by party leadership.
Ookeditse, nevertheless, has indicated that if offered another opportunity to serve in a different capacity, he will gladly accept. “I still need to learn the party, how it functions and all its structures; I must be guided, but given any responsibility I will serve the party as long as it is not the SG position.”
“I joined the BPF with a clear conscious, to further advance my voice and the interests of the constituents of Nata/Gweta which I believe the BDP is no longer capable to execute.” Ookeditse speaks of abject poverty in his constituency and prevalent unemployment among the youth, issues he hopes his new home will prioritise.
He dismissed further allegations that he resigned from the BDP because he was not rewarded for his efforts towards the 2019 general elections. After losing in the BDP primaries in 2018, Ookeditse said, he was offered a job in government but declined to take the post due to his political ambitions. Ookeditse stated that he rejected the offer because, working for government clashed with his political journey.
He insists there are many activists who are more deserving than him; he could have chosen to take up the opportunity that was before him but his conscious for the entire populace’s wellbeing held him back. Ookeditse said there many people in the party who also contributed towards party success, asserting that he only left the BDP because he was concerned about the greater good of the majority not individualism purposes.
According to observers, Ookeditse has been enticed by the prospects of contesting Nata/Gweta constituency in the 2024 general election, following the party’s impressive performance in the last general elections. Nata/Gweta which is a traditional BDP stronghold saw its numbers shrinking to a margin of 1568. BDP represented by Polson Majaga garnered 4754, while BPF which had fielded Joe Linga received 3186 with UDC coming a distant with 1442 votes.
There are reports that Linga will pave way for Ookeditse to contest the constituency in 2024 and the latter is upbeat about the prospects of being elected to parliament. Despite Ookeditse dismissing reports that he is eying the secretary general position, insiders argue that the position will be availed to him nevertheless.
Alternative favourite for the position is Vuyo Notha who is the party Deputy Secretary General. Notha has since assumed duties of the secretariat office on the interim basis. BPF politburo is expected to meet on 25th of January 2020, where the vacancy will be filled.
Botswana Democratic Party (BDP) big wigs have decided to cancel a retreat with the party legislators this weekend owing to increasing numbers of Covid-19 cases. The meeting was billed for this weekend at a place that was to be confirmed, however a communique from the party this past Tuesday reversed the highly anticipated meeting.
“We received a communication this week that the meeting will not go as planned because of rapid spread of Covid-19,” one member of the party Central Committee confirmed to this publication. The gathering was to follow the first of its kind held late last year at party Treasurer Satar Dada’s place.