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 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.
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.
In a classic and shocking case of disgrace and dishonour to this country, the law enforcement agencies are currently struggling to cover up a damaging and humiliating scandal of having conspired to forge the signature of a Palapye Chief Magistrate, Rebecca Motsamai in an unlawful acquisition of the much-publicised 2019 warrant of arrest against Isaac Kgosi, the former director of the Directorate of Intelligence Services (DIS).
The cloak-and-dagger arrest was led by the DIS director, Brigadier Peter Magosi supported by the Botswana Police, Botswana Defence Force (BDF), with the Botswana Unified Revenue Services (BURS) which accused Kgosi of tax evasion, in the backseat.
Umbrella for Democratic Change (UDC) constituent members are struggling to reach an agreement over the allocation of wards for the imminent ward by-elections across the country.
Despite a Memorandum of Understanding (MoU) between Umbrella for Democratic Change (UDC), Botswana Patriotic Front (BPF) and Alliance for Progressives (AP) are said to be active, but the nitty-gritties are far from being settled.
The eight bye-elections will be a precursor of a somewhat delayed finalisation of the brittle MoU. The three parties want to draw a plan on how and who will contest in each of the available wards.
This publication has gathered that the negotiations will not be a run off the mill because there is already an impasse between the Botswana Congress Party (BCP) which is a UDC constituent and AP (currently negotiating to join umbrella).
The by-elections joint committee met last week at Cresta President Hotel in a bid to finalise allocation but nothing tangible came out of the gathering, sources say.
The cause of the stalemate according to those close to events, is the Metsimotlhabe Ward which the two parties have set their eyes on.
In 2019, he ward was won by Botswana Democratic Party’s (BDP) Andrew Sebobi who unfortunately died in a tragic accident in February last year.
Sebobi had convincingly won by 1 109 votes in the last elections; and was trailed by Sephuthi Thelo of the UDC trailed him with 631 votes; while Alliance for Progressives’ Innocent Moamogwe got 371 votes.
Thelo is a BCP candidate and as per UDC norm, incumbency prevails meaning that the BCP will contest since they were runners up. On the other hand, AP has also raised its hand for the same.
“AP asked for it on the basis that they have a good candidate but BCP did not agree to that request also arguing they have a better contestant,” one UDC member confided to this publication.
Notwithstanding Metsimotlhabe Ward squabble, it is said the by-election talks are almost a done deal, with Botswana National Front (BNF) tipped to take Boseja South ward in Mochudi East constituency. Botswana Patriotic Front (BPF) will be awarded Tamasane Ward in Lerala/Maunatlala constituency, sources say.
“But the agreement has to be closed by National Executive Committee (NEC),” emphasized the informant.
The NEC is said to have been cautioned not to back the wrong horse but rather rate with reason and facts.
UDC President, Duma Boko has told this publication that, “allocation is complete with two wards already awarded but with only one yet to be finalized,” he could not dwell into much details as to which party got what and the reasons for the delay in finalisation.
Chairperson of the by-elections committee, Dr. Phenyo Butale responded to this publication regarding the matter: “As AP we contested and as you may be aware we signed the MoU with UDC and BPF to collaborate on bye-elections. The opposition candidate for all bye-elections will be agreed by these parties and that process is still ongoing,” he said when asked if AP is interested on the ward and how far with the talks on bye-elections.
Butale, a former Gaborone Central Member of Parliament, who is also AP Secretary General continued to say, “As the chairperson of the bye-elections committee we are still seized with that matter. We should also do some consultations with the local structures. Once the process is complete we will issue a notice for now we cannot talk about the other two while the other is still pending the other one”.
Butale further clarified: “There is no such thing as AP and BCP not in agreement. It is an issue of signatories discussing and determining the opposition candidates across the three wards.”
Apart from the three wards, there are five more council wards that UDC is yet to allocate to cooperating partners.
FROM PALAPYE MEET: BPP CAUTION NEC MEMBERS
With the UDC cheerful from last weekend’s meeting in Palapye, the meeting however was very tense on the side of both BCP and BNF, with only BPP flexing its muscle and even lashing out.
BCP going into the meeting, had promised to ask difficult questions to the UDC NEC.
BCP VP and also acting Secretary General, Dr. Kesitegile Gobotswang, presented their qualms which were addressed by UDC Chairperson Motlatsi Molapisi, informants say.
It is said Molapisi is fed up and concerned by some UDC members especially those in the NEC who ‘wash party’s dirty linen in public’.
Insiders say the veteran politician cautioned the NEC members that they “will not expel any party but individuals who tarnish the image of the UDC.”
It is not the first time BPP play a paternalistic role as it once expressed its discontent with BCP in 2020, saying it should never wash UDC linen in public.
At first it is said, BPP, the oldest political formation in Botswana, claims disappointment on BCP stance that UDC should be democratised especially by sharing their stand with the media. Again, BPP was not happy with BCP leader Dumelang Saleshando’s decision to air his personal views on social media regarding the merger of UDC party.
Botswana Police Service (BPS) Commissioner, Keabetswe Makgophe, has of late been dousing raging fires from various quarters of society following the infiltration of the police fingerprint system by the Directorate on Intelligence and Security (DIS), WeekendPost has learnt.
Fresh information gleaned from a number of impeccable sources, points to a pitiable working relationship between the two state organs. Cause of concern is the DIS continuous big brother role to an extent that it is now interfering with other institutions’ established mandates.
BPS which works closely with the DIS has been left exasperated by the works of the institution formed in 2008. It is said, the DIS through its Information Technology (IT) experts in collusion with some at BPS forensics department managed to infiltrate the Fingerprint system.
The infiltration, according to those in the know, was for the DIS to “teach a lesson” to some who are on their radar. It is said the DIS is playing and fighting dirty to win the fights they have lost before.
By managing to hack the police finger print system, a number of renowned businessmen and other politically exposed persons found their fingers in the system. What surprised the victims is the fact that they have never been charged of any wrongdoing by the police and they were left reeling in shock to learn that their fingers are on the data-base of criminals.
In fact, some of those who their fingerprints were falsely included in the records of those on the wrong side of law learnt later when other errands demanded their fingerprints.
“We learnt later when we had to submit and buy some documents and we were very shocked,” one politician who is also a businessman confided to this publication this week.
“We then learn that there are some fabricated criminality recorded for us, as to when did we commit those remained secret to the police, but then we had to engage our lawyers on the matter and that is when we were cleared,” said the politician-cum- tenderpreneur.
The lawyers have confirmed engaging the police and that the matters were settled in a gentlemen’s agreement and concluded.
All these happened behind the scenes with the police top brass oblivious only to be confronted by the irked lot, police sources also add. The victimized group who most of them have been fighting lengthy battles with the DIS read malice and did not blink when it was revealed that these were done by the DIS.
“And it was clear that they (DIS) are the ones in this dirty war which we don’t understand. Remember when we sue, it will be the Police at the courts not the DIS and that is why we agreed to a ceasefire more so they also requested that be kept under carpet,” said the victim.
Nonetheless, the Police through its spokesperson Assistant Commissioner, Dipheko Motube, briefly said: “we do not have any system that has been hacked.” On the other hand DIS mouthpiece Edward Robert was not in office this week to comment on the matter.
Reports however say DIS boss, Peter Magosi, who most of the victims accuse of the job, is said to have met his police counterpart Makgophe to put the matter to bed.
COVID-19 RAVAGES POLICE
As frontline workers, Police have not escaped the wrath of Covid-19. Already the numbers of those infected has reached the highest of high and they suggest that they be priorities on vaccine rollout.
“Our job is complicated, firstly we arrest including those who are non-compliant to Covid protocols and we go to accidents and many more. These put us at risk and it seems our superiors are not bothered,” said one police officer this week.
The cops further complain about that working spaces are small, as such expose them to contact the virus.
“Some tests positive and go for quarantine while the rest of the unit will be left without even test carried out. If at all the bosses are serious all the police officers should every now and then be subjected to testing or else we will be no more because of the virus,” added another officer based in Gaborone.
The government has since placed teachers on the priority list for the vaccines, it remains to be seen whether the police, who also man road blocks, will be considered.
“But our bosses should convince the country leadership about this, if not then we are doomed,” concluded a more senior officer.