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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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Details emerge in suspected Batswana poachers in Namibia

28th June 2022
suspected Motswana poacher arrested

New details about a suspected Motswana poacher arrested in Namibian and his accomplice who is on the run were revealed when the suspect appeared in court this week.

The Motswana Citizen who was shot and wounded by Namibia’s anti poaching unit is facing criminal charges under criminal case number (CR NO 10/06/2022) which was registered at the Divundu Police Station in the Mukwe constituency of the Kavango East Region on 10 June 2022.

It is alleged that a patrol team laid an ambush after discovering a giraffe’s fresh carcass in a snare wire and hanging biltong.  According to the Charge Sheet, the suspect Djeke Dihutu, aged 40 years, is charged with contravening and transgressions of Nature Conservation Ordinance andcontravening Immigration Act 07 in Mahango Wildlife Core Area, Bwabwata National Park. Dihutu’s first court appearance was on the 17th of June 2022, Rundu and it was postponed to the 07 July 2022. He is currently hospitalized in hospital under Police Guards.

Commenting on this latest development, the Namibian Lives Matter Movement National Chairperson Sinvula Mudabeti applauded the Namibian Anti Poaching Unit for its compliance with what it called the universal instrument on the Code of Conduct for Law Enforcement Officials adopted by the United Nations General Assembly resolution 34/169.

“We are aware that the duties of the police carry a great deal of risk, but our police has shown that they have a moral calling and obligation to protect even foreigners suspected of serious crimes on Namibian soil,” said Mudabeti.

According to him, whereas the Botswana Police Service, the Botswana Defence Force (BDF) and Directorate of Intelligence Service (DIS) have “very low moral ethics, integrity, accountability and honesty, the Namibian security agencies has shown very high levels of ethical leadership in the discharge of their duties even under duress.”

He said Namibian’s anti poaching unit has exercised one very important value, that is, the use of force only when it is reasonable and necessary. Mudabeti said this is in harmony with international best practices as enshrined in Article 2 of the UN instrument on law enforcement conduct, “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Our police have protected the life of a Botswana poacher and accorded him dignity, which is very foreign to our Botswana counterparts,” he said. He said article 3 of the same instrument above, calls for Law enforcement officials to use force only when strictly necessary and to the extent required for the performance of their duty.

“This provision emphasizes that the use of force by law enforcement officials should be exceptional; while it implies that law enforcement officials may be authorized to use force as is reasonably necessary under the circumstances for the prevention of crime or in effecting or assisting in the lawful arrest of suspected offenders, no force going beyond that was used by our Police,” he said.

Furthermore, Mudabeti said, whereas the universally accepted norm of the law of proportionality ordinarily permits the use of force by law enforcement, it is to be understood that such principles of proportionality in no case should be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved.

“Our police have used force proportional to the situation at hand. Great work indeed! Article 6 urges law enforcement officials to ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required,” he said.

Mudabeti said the Botswana poacher was immediately taken to hospital whereas the Nchindo brothers who were captured on Namibian soil, beaten, tortured and executed while pleading to be taken to the hospital we left to die.

“The Namibian Doctor gave evidence in court that Sinvula Munyeme’s lungs showed signs of life (during the autopsy) and that he could have survived if he was accorded immediate medical assistance in time but was left to die while BDF soldiers looked and possibly ignored his cry for help,” he said.

Mudabeti said unlike in Botswana where there are no clear separation of powers between the BDF, Botswana Police Service, Department of Intelligence and their Directorate of Public Prosecutions,” we have a system that allows for checks and balances and allows our people and foreigners who are found on the wrong side of the law to be accorded the right to a fair trial.”

He said Botswana citizens are treated with dignity when apprehended in Namibia and not assaulted, tortured and executed. “We are a civilized country that respects international law in dealing with non-Namibian criminals. The Namibian Police have not mistreated the Botswana poacher but have given him the benefit of the doubt by allowing due processes of the law to be followed,” he said.

He added that, “We are a peace loving nation that has not repaid Botswana by the evil that Botswana has done to Namibia by killing more than 37 innocent and unarmed Namibians by the trigger happy BDF.” He concluded that, “Our acts of mercy in arresting Botswana citizens should never be mistaken for cowardice.”

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Gov’t, Unions clash over accommodation

28th June 2022
accomodation

The government has reportedly taken a decision to terminate provision of pool housing and subsidy for civil servants as it attempts to trim the public service wage bill.

This emerges in a dispute that is currently before the Labour Office headquarters lodged by unions representing thousands of civil servants across the country. This publication understands that the decision to cease providing pool housing and rental subsidy for public officers is part of proposals that government put on the table during its negotiations with public service unions in order for it to adjust salaries.

A letter from Labour Office addressed to the Directorate of Public Service Management (DPSM) shows that the directorate is cited as the First Respondent. The letter is titled, “Dispute lodged: Cessation of provision of pool housing and subsidy for pubic officers.”

“This serves as a notification and requirement to a mediation hearing,” the letter informed DPSM. According to the letter, the Botswana Teachers Union (BTU), Botswana Sectors of Educators Trade Unions (BOSETU) Botswana Nurses Union (BONU) and Botswana Land Board &Local Authorities &Health workers Union (BLLAHW) who lodged the complaint are cited as the Applicant.

“Please come for mediation hearing. The hearing will be conducted by Mr Lebang. The hearing is scheduled for date/time 29th June 2022, 09: 00HOURS at Block 8 District Labour Office, Gaborone. Please bring all relevant documents,” reads the letter in part.

According to a document described as a proposal paper on the negotiations on salaries and other conditions of employment of public officers by the employer (government), the government did not only propose to stop providing accommodation to civil servants but also put a number of proposals on the table.

The proposal papers states that the negotiations (which have since been concluded) cover three government financial years; 2022/23, 2023/24 and 2024/25. The government proposed an across the board salary adjustments as follows; 3% for the financial year 2022/23 effective 1st April 2022, across the board salary adjustment of 3.5% for the financial year 2023/24 effective 1st April 2023 subject to performance of the economy and across the board salary adjustment of 4% for the financial year 2024/25 effective 1st April 2024 subject to performance of the economy.

The government also proposed phasing out of retention and attractive (Scarce Skills) Allowance with a view to migration towards clean pay, renegotiate and set new timelines for all outstanding issues contained in the Collective Labour Agreement, executed by the employer and trade unions on the 27th August 2019, to ensure proper sequencing, alignment and proper implementation.
The government also proposed to freeze public service recruitment for the 2022/23 financial year and withdraw the financial equivalence of P500 million attached to vacancies from Ministries, Department and Agencies (MDAs).

Another proposal included phasing out of commuted overtime allowance and payment of overtime in accordance with the law and review human resource policies during the financial year 2022/23, 2023/24 and 2024/25.

The government argued that its proposals were premised on affordability and sustainability adding that it was important to underscore that the review of salaries and conditions of service for public officers was taking place at a time when there were uncertainties both in the global and domestic economies.

“Furthermore there is need to ensure that any collective labour agreement that is concluded does not breach the fiscal deficit target of 4% of GDP,” the proposal paper stated. The proposal paper further indicated that beyond salary adjustments, the Government of Botswana is of the view that a more comprehensive consideration “must be taken on the issue of remuneration in the public service by embracing principles such as total rewards compensation which involves taking a fully comprehensive and holistic approach to how our organization compensates employees for the work.”

The proposal paper also noted that, “Clearly, the increase in salaries and changes to other conditions of service which have monetary consequences will further increase the proportion of the budget taken by salaries, allowances and other monetary based conditions of services.”

“The consequential effect would be a reduction of the portion that can be used for other recurrent budget needs (e.g. maintenance of assets, consumable supplies such as medicines and books) and for development projects,” the proposal states.

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BPF NEC probes Serowe squabbles

28th June 2022
BPF

Opposition Botswana Patriotic Front (BPF) National Executive Committee will in no time investigate charges party members worked with the ruling Botswana Democratic Party (BDP) membership to tip the scales in favour of the latter for Serowe Sub-council Chairmanship in exchange for deputy seat in a dramatic 11th hour gentleman’s deal, leaving the ruling party splinter under the political microscope.

In a spectacular Sub-council election membership last Thursday, the ruling BDP’s Lesedi Phuthego beat Atamelang Thaga with 14 votes to 12 for Serowe Sub-council Chairmanship coveted seat and subsequently the ruling party’s councilor Bernard Kenosi withdrew his candidacy in the final hour for the equally admired deputy chair paving the way for Solomon Dikgang of BPF, seen as long sealed ‘I scratch your back and you scratch mine’ gentleman’s agreement between the contenders.

Both parties entered the race with a tie of votes torn between 12 councillors each, translating for election race that will go down to the wire definitely. But that will not be the case as two BPF councilors shifted their allegiance to the ruling party during the first race for Chairmanship held in a secret ballot and no sooner was the election concluded then the ruling party answered back by withdrawing its candidacy for the deputy chair position to give BPF’s Dikgang the post on a silver platter unopposed.

BPF councilor Vuyo Notha confirmed the incident in an interview on Wednesday, insisting the party NEC was determined to “investigate the matter soon”. “During the race for the Chairmanship, two more BPF voted for alongside the ruling party membership. It was clear Dikgang voted alongside the BDP as immediately after the vote for Chairmanship was concluded, Kenosi withdraw his candidacy to render Dikgang unopposed as a payback,” Notha added.

As for the other vote, Makolo ward councilor will not be drawn for the identity preferring instead to say: “BPF NEC will convene all the councilors to investigate the matter soon and we will take from there.” Notha will also not be drawn to conclude may be the culprit councilors could have defected to the ruling party silently.

“If they are no longer part of us they should say so and a by-election be called,” was all he could say. As it stands now, the law forbids sitting Councilors and Parliamentarians from crossing the floor to another party as to do so will immediately invite for a new election as dictated by the law. Incumbent politicians will therefore dare not venture for the unknown with a by-election that could definitely cost their political life and certainly their full benefits.

Notha could also not be dragged to link the culprit councilors actions to BPF Serowe region Chairperson Tebo Thokweng who has silently defected to the ruling party and currently employed by the party businessman and former candidate for Serowe West Moemedi Dijeng as PRO for the highly anticipated cattle abattoir project in Serowe.

“As for Thokweng he has not resigned from the party but from the region’s chairmanship,” he said. WeekendPost investigations suggest Thokweng is the secret snipper behind the recruitment drive of the votes for the elections and is determined to tear the party dominance in Serowe and the neighbouring villages asunder including in Palapye going forward.

This publication’s investigations also show BPF’s Radisele and UDC’s Mokgware/Mogome councilors are under the radar of investigations for the votes-themselves associated with the workings and operations of Thokweng.

“NEC will definitely leave no stone unturned with their investigations to get into the bottom of the matter. Disciplinary actions will follow certainly,” Notha concluded, underscoring the need to toe the party line to set a good precedent. For the youthful councilor, the actions of his peers has set a wrong precedent which has to be dealt with seriously to deter future culprits.

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