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Chinese sue Gov’t over dummy tender


A Chinese company is suing the Government of Botswana over a forty million Pula Local Government and Rural Development citizens only tender after a local contractor, N AND M Services, secretly sold them the deal, fully knowing that the Chinese did not qualify to execute the job.


The disputed multimillion Pula tender was for the procurement and construction of water treatment plants and evaporation ponds at New Xade and Radisele.


The Chinese company said it entered into an agreement of Cession in terms of which the citizen company ceded all its rights under tender No 8/1/3/12II. The tender was awarded by the Department of Local Services.


Giant Building Construction say they fulfilled all their contractual agreements, in particular the two million Pula payment to the Citizen Contractor who also acknowledged receipt of the money as shown in court documents, as well as a performance bond of Two Million and Forty Four Thousand Seven Hundred and Three Pula Forty four thebe to the Department of Local Government.


The Chinese company argue that they further mobilized their workforce and machinery and started work at the two sites. “The applicant did all the above in the bona fide and reasonable belief that the agreement was valid and enforceable,” argues the Chinese company Lawyer, Yame Tshepo Kebabonye in the court papers.


The court papers show that the Citizen Contractors failed to cede their rights in the said tender to the Chinese due to the fact that the said tender was reserved for citizens only and therefore could not be ceded to non citizen companies, a fact well known by the citizen Contractors and a fact they hid from the Chinese.


The Chinese applied for payment of their Two Million Pula with a ten percent interest on the amount from date of breach to date of full payment as well as legal costs at attorney and own client scale. They further said they performed the work as per the contract and want an amount of P2 119 278.71 for that.

The agreement

The material terms of the said agreement were that the Citizen Company, N AND M absolutely cedes every right to the Chinese, including the benefits. It was therefore agreed that the Chinese shall pay the Citizen Contractor the total sum of Three Million Pula which includes VAT and which amount represented the consideration to be paid to the Citizen Company for the said cession of rights and interest.


It was also agreed that the said amount of P3,000.000.00 shall be paid as follows: ‘firstly  Two Million Pula upon signing of the agreement between the parties and the remaining balance of One Million Pula shall be paid after three months from the project commencement date by way of six successive payments of P166,666,66 from six successive payment certificate,’ reads the court papers.


The agreement was also that immediately after signing of the agreement, the Citizen Contractor shall apply for three percent withholding TAX exemption from Botswana Unified Revenue Services and deliver it to the Chinese.


It was also agreed the Chinese shall provide a security worth Two Million and Forty Four Thousand seven Hundred and Three Pula Forty Four thebe to the department of Local government as a client. This performance bond was a pre-requisite for the award or finalizing of the tender.


Moreover the two had agreed that the collateral security provided by the Chinese Contractors for the said performance bond shall be restored back to the Chinese at the end of the contract.


It was further agreed that all payments for work done under the contract shall be paid directly to the Chinese account and that the Director or the Chinese Contractor, Wang Daotian must be the sole signatory of the account and shall so remain for the entire duration of the contract.


Another agreement was that the Citizen Contractor shall deliver to the Chinese the complete original agreement of the contractor in order that the applicant may verify the specifications thereto.


It was further agreed that the Citizen Contractor shall sign all documents and render assistance as may be reasonably required for the fulfilment of the parties’ obligations under the contract.


The Citizen Contractor however denied ever making such an agreement with the Chinese contractor. In defence, the Citizen Contractors argued that the Chinese company does not even exist. “I am advised that proceedings instituted by a non-exist entity have no effect in law and are liable to be set aside as a nullity,” said the Citizen Contractor Director, Chilisa Ndlovu.


He continued that nothing came out of the negotiations with the Chinese contractors, as they wanted seventy percent of the works.


“We were not amenable to such a move for it would mean that the Chinese contractor would be in total control of the project if he was given such a percentage of the works,” he said further arguing that they never entered into an agreement with the Chinese contractors.


Chilisa further accused the Chinese Contractors of faking their signatures in the contract agreement cited by the Chinese. “The resolution was for the negotiations of sub-contracting and nothing more. I do not understand the Chinese Contractor saying subcontracting and cession of agreement are identical concepts,” they said further denying that the Chinese Contractor ever paid them the said Two Million Pula.


Chilisa called on the Chinese to provide proof of any invested amount into the project, as according to him they never paid a single thebe onto the said project.
 

Judgement

In March last year, the Lobatse high court ruled in favour of the Chinese after they took the Citizen contractor to Court over the matter. A default judgement was made when N AND M Services failed to appear to defend their actions.


Efforts to attach the Citizen Contractor’s goods as per a follow up judgement were also futile as the there were no goods to satisfy the judgement.


N AND M Services is represented by Kanjabanga and Associates whereas the Chinese contractor, Giant Building Construction is represented by Sadique Kebonang Attorneys. The law firms representing the two warring parties did not want to comment on the matter.


Recently the Chinese’s lawyers successfully sought a garnishee order against the government to the debts. A garnishee order is a legal proceeding in which a plaintiff seeks the satisfaction of a debt by obtaining a judgment that directs a third party in possession of the property of the defendant to make it available to satisfy the judgment. The order was granted by Justice Nthomiwa Nthomiwa on the first week of August.


A letter passed to this publication from the Attorney General Chambers suggest that on the 5th of August 2015, the Chinese contractor’s lawyers wrote a letter to the Attorney General requesting the payments.


“We have previously informed you what is owed to our client. We in this regard attach the court in favour of our client and against N AND M Services. Kindly pay all money due to N AND M services from yourself, satisfying the attached judgement to the bank account provided below, the money to be paid includes the retention fee held by yourself on behalf of N AND M Services. We trust you will swiftly comply with the court order,” the letter stated.

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Botswana still weighing in on Maseko’s assassination

27th January 2023

The Minister of Foreign Affairs, Dr. Lemogang Kwape says Botswana has not taken any position regarding the killing of a renowned human rights lawyer, Thulani Maseko, who was gunned down at his house in Mbabane, Eswatini.

In a brief interview with WeekendPost, Dr Kwape said Botswana has not yet taken any position regarding his death. He said the purported incident should be thoroughly probed before Botswana can form an opinion based on the findings of the inquiries.

“Botswana generally condemns any killing of human life by all means,” says Dr. Kwape. He wouldn’t want to be dragged on whether Botswana will support the suspension of Eswatini from SADC.

“We will be guided by SADC organ Troika if they can be an emergency meeting. I am not sure when the meeting will be called by Namibian president,“ he said.

However, the Namibian president Hage Geingob notes with deep concern reports coming out of Eswatini about the killing of Mr. Maseko. In a statement, he called upon the “Government of the Kingdom of Eswatini to ensure that the killing of Maseko is swiftly, transparently and comprehensively investigated, and that any or all persons suspected of committing this heinous crime are brought to justice.”

Maseko was chairperson of the Multi-Stakeholder Forum which was established as a coalition of non-State actors to advocate for a process of national political dialogue aimed at resolving the security and political challenges confronting the Kingdom.

“SADC expresses its deepest and heartfelt condolences to the family of Mr. Maseko, his friends, colleagues, and to the people of the Kingdom of Eswatini for the loss of Mr. Maseko. In this context, SADC further calls upon the people of the Kingdom of Eswatini to remain calm, exercise due care and consideration whilst the appropriate structures conduct the investigations and bring the matter to completion,” the statement says.

Geingob reiterated the need for peaceful resolution of the political and security challenges affecting the country.

Meanwhile political activists are calling on SADC to suspend Eswatini from the block including the African Union as well.

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Kopong Murder: Accused interferes with witnesses again!

27th January 2023

State prosecutor, Seeletso Ookeditse revealed before the Broadhurst Magistrate Jobbie Moilatshimo that the third accused involved in the murder of Barulaganye Aston, has interfered with the State witnesses again.

The second and third accused (Lefty Kosie and Outlwile Aston) were previously accused of interference when they were caught in possession of cellphones in prison. They were further accused of planning to kill the deceased’s brother, who is currently the guardian to the children of the deceased.

Ookeditse indicated that Outlwile had earlier went to challenge the magistrate’s decision of denying him bail at the High Court before Judge Michael Motlhabi.

“The third accused approached the High Court and made a bail application, which was dismissed on the same day,” Ookeditse said.

However, even after the High Court verdict on their bail application, the duo (Kosie and Aston) has once again applied for bail this week.

Ookeditse plead with the court to stop the accused from abusing the court process.

“Yesterday, Directorate of Public Prosecutions (DPP) received papers of his bail application filed before the Broadhurst Magistrates Court. However, the papers do not speak to changed circumstances, therefore this back and forth about bail must be put to a stop,” said the State prosecutor.

While giving evidence before court, the Investigations Officer, Detective Inspector Quite Zhalamonto, said his investigations have proved that there is interference continuing regarding the accused trio.

He told the court that on the 12th of January 2023, he received a report from Thato Aston, who is the son of the accused and the deceased. The son had alleged to the Investigation Officer that he received a call from one Phillip Molwantwa.

According to Zhalamonto, Thato revealed that Molwatwa indicated that he was from prison on a visit to the Outlwile Aston and went on to ask where he was staying and where his siblings (Aston’s children) are staying.

“Thato revealed that Phillip went on to ask if he or his siblings saw their father murdering their mother, and he was referring to the crime scene. Thato told me that he, however, refused to answer the questions as he was afraid especially because he was asked about where him and his siblings stay,” said Zhalamonto.

Zhalamonto alluded to the court that he then went to Orange to confirm the communication between Thato and Molwantwa where he found the case.

“I have arrested Philip yesterday and when I interviewed him, he did not deny that he knows Aston and that he has indeed called Thato and asked questions as to where him and his siblings resides even though he failed to give reasons for asking such questions,” Zhalamonto told the court.

He further revealed that Molwantwa indicated that he had received a call from an unknown man who refused to reveal himself.

“Phillip told me that the unknown man said he was sent by the accused (Aston), and that Aston had instructed him to tell me to check if there was still some money in his bank accounts, and he also wanted to know where the kids were residing, the unknown man even asked him to meet at Main Mall” the Investigation Officer told the court.

He further informed the court that he is working tirelessly to identify the “unknown caller” and the route of the cell number.

Furthermore, the fourth accused, Kebaleboge Ntsebe, has revealed to the court through a letter that she was abused and tortured by the Botswana Police Services. She wrote in her letter that she suffered miscarriage as a result of being beaten by the police.

Ntsebe is on bail, while a bail ruling for Aston and Kosie will be delivered on the 6th of next month

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Ngamiland Cattle Farmers Gain Green Zone Revenue

27th January 2023

Cattle farmers from Eretsha and Habu in the Ngamiland district, supported by the Community Based Trade (CBT) project, recently generated over P300 000.00 for sales of 42 cattle to the Botswana Meat Commission (BMC) in Maun. This milestone was achieved through support from various stakeholders in conservation, commodity-based trade and the government, in collaboration with farmers. Ordinarily, these farmers would not have made this direct sale since the area is a designated Foot and Mouth Disease (FMD) Red Zone.

Traditional livestock farming contributes toward livelihoods and formal employment in the North-West District (Ngamiland) of Botswana. However, primarily due to the increase in FMD outbreaks over the past two decades and predation by wildlife, the viability of livestock agriculture as a source of income has declined in the region. This has led to a greater risk of poverty and food insecurity. Access across the Okavango River (prior to the construction of a bridge) restricted access for farmers in Eretsha. This lack of access hampered sales of cattle beyond Shakawe, further discouraging farmers from investing in proper livestock management practices. This resulted in negative environmental impacts, poor livestock health and productivity.

To address this challenge, farmers are working with a consortium led by Conservation International (CI), with funding secured from the European Union (EU) to pilot a CBT beef project. The project focuses on supporting and enabling communal farmers to comply with standards and regulations that will improve their chances to access markets. An opportunity to earn higher income from cattle sales could incentivize the adoption of restorative rangelands management practices by farmers.

These collaborative efforts being piloted in Habu and Eretsha villages also include the Pro-Nature Enterprises Project for the People of Southern Africa, funded by Agence Française de DĂ©veloppement (AFD) and Le Fonds français pour l’environnement mondial (FFEM). This complementary funding from AFD and FFEM supports the implementation of the Herding4Health (H4H) model and Rangeland Stewardship Agreements across four rangeland sites in Southern Africa, including Habu and Eretsha, to incentivize best practices that could offer sustainability in the long term for livelihoods, conservation and human-wildlife coexistence.

“We spend a lot of money getting our cattle to Makalamabedi quarantine site, the herder spends on average two months taking care of the cattle before they are taken into quarantine – that needs money. All these costs lead to us getting less money from BMC,” said one of the farmers in the programme, Mr Monnaleso Mosanga.

Farmers that participate in the project agree for their cattle to be herded and kraaled communally by fulltime professional herders (eco-rangers). At the core of this pilot is the use of predator-proof bomas (cattle kraals), planned grazing systems and mobile quarantine bomas (electrified enclosures) for the cattle, facilitated in support with the Department of Veterinary Services. The first successful exit from the mobile quarantine bomas in the Habu and Eretsha villages, in December 2022, saw cattle quarantined on-site and directly transported to BMC in Maun. Farmers received almost double the average sales within this region, as costs including transportation to quarantine sites, herder’s fees and other associated costs incurred before qualifying for BMC sales were no longer included.

“This pilot mobile quarantine is leveraging the techniques and protocols we are using at our current permanent quarantine sites, and we are still observing the results of the project. The outcome of this pilot will be presented to the World Organisation of Animal Health to assess its effectiveness and potentially be approved to be used elsewhere,” said Dr Odireleng Thololwane, the Principal Veterinary Officer (Maun).

Through co-financing of almost P1 billion from the Botswana government and Green Climate Fund, these interventions will be replicated, through The Ecosystem Based Adaptation and Mitigation in Botswana’s Communal Rangelands project, across the country. Both projects aim to improve the economic benefits of cattle owners and multitudes of Batswana households, while contributing to land restoration and climate change efforts by the Botswana government

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