Debswana Diamond Company has terminated a contract worth P61 millon that was awarded to a South African Company headed by a South African former politician, Koos Van De Merwe. The termination has pushed Van De Merwe to the edge and he is suing the giant mining company.
Van De Merwe was given a deal worth over a Sixty One Million Four Hundred and Ninety five Thousand One Hundred and thirty three rand Sixty Cents (ZAR 61 495 133.60) to drill the 165MM blast holes at Letlhakane and Damtshaa Mines.
The South African Company applied to the court after Debswana ordered them to leave the cite immediately, a few weeks after the South African company was placed under business rescue in terms of the Company’s Act in South Africa.
Business rescue is a new concept in South African Law and was introduced through the enactment of the Companies Act 71 of 2008 (“The Act”). One of the main purposes of the Act as encapsulated in Sec 7 of the Act is to “provide for the efficient rescue and recovery of financially distressed companies in a manner that balances the rights and interests of all relevant stakeholders. Business Rescue in South Africa is essentially the same as Judicial Management in Botswana.
The Company appointed a business rescue practitioner persuant to which he exercises full management and control over the Company in substitution of its Board of Directors and pre-existing management of it.
Following that, Debswana terminated the contract it entered into with the Company and this set litigation in motion. The applicants dispel Debswana’s right to cancel the contract saying the reasons are not those that were agreed upon in the contract.
The parties had agreed that the contract can only be terminated if the contractor “becomes bankrupt or insolvent, goes into liquidation, has a receiving or administration order made against him, compounds with his creditors or carries on business under a reciever, trustee or manager for the benefit of his creditors, or if any act is done or event occurs which (under applicable laws) has a similar effect to any of these acts or events.”
The South African based company which had employed scores of Batswana argues that the termination is invalid because of these disputed clause or agreement. They further argue that ‘the clause doesn’t refer to business rescue.
In a letter addressed to Debswana, Van De Merwe’s company states that it “has allowed the business rescue practitioner to drill, well knowing that the company is under business rescue. You have therefore waived your rights to cancell the agreement. The other shareholder has consented that I may cede the agreement to Advanced Capital Botswana,” said the Business Rescue practitioner, Etienne Naude to Debswana.
Advanced Capital Botswana is a company owned by former Botswana Democratic Party Secretary General, Mpho Balopi according to documents Weekend Post is in possession of. The SA Company had wanted to invest in Balopi’s company and become an equity partner.
Debswana through its legal Counsel, Ludo Tema, however disagree with the Company’s interpretation of the Clause or agreement.
“We do not agree with your views on the clause. In our View the specific events set out in the clause are clearly not (and are not intended to be) an exhaustive list of events which entitle the employer to cancel. In our view the clause need not mention ‘business rescue’ specifically in order for it to constitute an event entitling the employer to cancel,” said the Debswana lawyer in an email sent to the Company business rescue practitioner, Naude.
He added that: “In respect of Nasera,a number of events listed are in our view, applicable and we believe that the process of business rescue is sufficiently covered by the clause.”
Tema denied that they have waived any rights in terms of the contract, “we have prudently and expeditiously under the circumstances and more importantly, in line with the requirements of the contract.”
According to his email, in terms of the contract, it is Debswana’s consent which would be required in order to cede and assign the contract, and that has not been granted.
Debswana charged that the proposed cession and assignment of the Contract to Balopi’s company is a clear repudiation of the Contract and would further be a breach of the contract.
“In the event that you still feel the need to sue us,then note that such actions shall be defended vigorously and that the address for such service is Debswana Corporate Centre,” said the Debswana legal Counsel,Tema.
Debswana according to the documents has ordered the company to vacate the cite and ceaze drilling activities and also remove its equipment from the mines.Debswana has according to the Company appointed another Company, Blasting and Excavation to commence drilling blast holes at the Damtshaa mine where they were drilling before being stopped.
Debswana has denied a series of accusations levelled against them by the Company and says legal arguments will be dealt with by the courts.
The case is before Judge Kebonang of the High Court. Debswana is represented by Armstrongs Attorneys while the South african compnay, NA Sera General Sales is represented by Mwikisa and Co.
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.