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Law Society will not challenge Kebonang appointment

Dr Zein Kebonang

The Law society of Botswana has abandoned its intention to challenge the appointment of Dr Zein Kebonang as the Acting Judge of the High Court.

The Law Society concede that the appointment was constitutional, however it is convinced that it stands the chance to successfully persuade the court that President Lt Gen Ian Khama was wrong not to appoint Omphemetse Motumise to the same bench.

In its application filed before the Gaborone High Court early this week, the LSB expressed its intention to request the court to review and set aside the President’s decision not to appoint Motumise as the High court Judge in April this year.

In April, President Khama turned down Motumise’s name which was recommended to him by the JSC for appointment to the bench and instead requested for a different name. The JSC then recommended Dr Kebonang for appointment and now the LSB which sits in the commission maintains that the President was wrong.

According to the LSB the President is bound to implement the advice of the JSC in terms of the constitution. The society has therefore filed a legal case against President Khama and the JSC for what they believe is violation of the laid down rules.

“The applicants submit that the JSC has the sole responsibility for deciding who should be appointed as judges to the High courts. The President does not retain any form of discretion to refuse or reject the advice of the JSC on which candidate should be appointed,” LSB explained it its filing notice.

The current application before court seeks to address among others, whether the President has discretion to refuse candidates who were or are nominated by the judicial service for appointment as judges to the High Court as well as to what extent the proceedings and decisions of the JSC are confidential.

The application further wants the court to pronounce as to what extent the LSB representative on the JSC is entitled to consult with and report to the LSB council on decisions and proceedings in the JSC.

The LSB through their attorney Tshiamo Rantao of Rantao Kewagamang Attorneys wants the court to review and set aside the President’s decision not to appoint Motumise as the Judge of the High court. The society also wants the court to declare that the judicial service commission’s interviews of candidates for appointment as judges must as a rule, be open to the public.

The Society would further request the court to declare that the JSC must make the outcome of its deliberations on the appointment of judges public.

“Candidates apply to a seat of profound public power and prestige to which an appropriately high standard of public scrutiny and accountability is attached. For this reason, the applicants submit that it is in the public interest that interviews take place in public and that this will act as a democratic safeguard against the risk of unsuitable individuals being vested with judicial authority,”

The LSB further contends that the principle underlying the application is that the independence of the country’s judiciary is foundational to its constitutional democracy and is premised on the competence, credibility, integrity and impartiality of the judiciary.

They further submitted that the JSC has been vested with a substantial public and constitutional responsibility to ensure such judicial independence and it is incumbent on them to exercise this power in an open and transparent manner and in conformity with general principles of good governance.

Attorneys, Tshiamo Rantao, Kelebogile Kewagamang, Nyaradzo Mupfuti, Tefo Gaongalelwe and Kuda Tshiamo have been given the power to represent the LSB and Motumise and the matter while President Khama, JSC and the Attorney General have been cited as respondents and expected to be represented by government attorneys.

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SEZA’s P126 million tender heads to court

1st March 2021

Special Economic Zone Authority’s (SEZA) P126 million Master Planning of Pandamatenga Special Economic Zones Business Case, Urban & Landscapes tender is in court after one of bidders, Moralo Design challenged its disqualification from the tender.

SEZA is transforming Pandamatenga into an Agropolis which will combine modern farming with top notch industrial, residential, commercial and recreational land use. The project is measured at 137, 007 ha which comprises of 84, 500 ha for commercial production, 12 400 ha for the subsistence production, 107 ha will be for Agro-processing while 40 000 ha will be for the Zambezi Integrated Agro-commercial Project (ZIACDP).

In their court papers, Moralo Designs, represented by Jones Moitshepi Firm, said they received a letter from SEZA on or around the 12th November 2020 notifying that their bid has been disqualified at the technical evaluation stage of the tender adjudication process.

In their response, Lonely Mogara who is Chief Executive Office of SEZA said Moralo Designs is not entitled to be heard by the court as the company never participated in the disputed tender hence SEZA knows the bidder as Moralo Design Consortium.

“Moralo Designs had failed to establish any right to be heard by the court. The fact that they had submitted a tender was not guarantee that they would be awarded the tender,” he said.
“The reasons for the disqualification of Moralo Design Consortium’s bid were valid and justified because their bid was insufficient as it lacked vital information as required by the terms of reference.”

SEZA Chief said the requirements for the work plan and project programme were clearly stated in the Invitation To Tender (ITT). Moralo Design Consortium was not penalised for non-existent requirements.  In disqualifying the bid by Moralo Designs Consortium, Mogara further indicated that SEZA considered that there was a requirement for a programme and work plan.

“The purported “project programme” that was submitted by Moralo Design Consortium failed to depict the activity durations, activity phasing and interrelations, milestones, delivery dates of reports and logical sequence of activities constituent with methodology and showing a clear understanding of the terms of reference,” said Mogara in responding affidavit.

He said the ITT required that there be provision of delivery dates within the programme hence Moralo Designs Consortium failed to consult with SEZA when they felt that such a requirement would be impossible to provide.  He continued to say there was an avenue available when the tender was being prepared, but they failed to use it.

“Moralo Designs’ application for interim relief lacks merit and only seeks to delay SEZA from completing the evaluation and award of a tender that will serve the greater good of the nation,” said Mogara.

He went on to say Moralo Designs has no prospects of succeeding in its review application as the possibility of court granting the review are so remote in that the court does not possess the requisite technical knowhow on what constitutes an adequate work plan and what ought to be contained in it.

A bidder disqualified for failure to provide adequate information has no right to be protected by the court. Irreparable harm can only be suffered by one who has shown that there exists a right in so far as having stood the chance of being awarded the tender.

The financial benefit likely to be derived by Moralo Designs- which is highly unlikely- is outweighed by the nature of the project. In the unlikely event that the application for review is successful, they can claim for damages.  The availability of such remedy weighs in favour of the interdict being refused. The refusal stands to benefit the nation more than the financial interest that Moralo Designs seeks to protect.

Moralo Designs failed to establish the urgency of their application. They waited for more than a month and half after the disqualification to approach the court on urgency. Meanwhile when delivering the State of the Nation Address (SONA) last year, President Mokgweetsi Masisi revealed that the detailed design and construction of 12 steel grain silos — with an overall storage capacity of 60 000 metric tonnes — is underway at the Pandamatenga SEZ and the P126 million project will be completed by August 2021.

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Masisi stops hefty P5 million MP allowance

1st March 2021
President Masisi

President Mokgweetsi Masisi has taken a stern but unpopular decision within the August House by putting to an end a hefty P403, 200 monthly budget directed towards legislators’ housing allowance.

Since the beginning of the 12th Parliament in November 2019, MPs have been staying in rented spaces. At first they were lodged at Avani hotel and a whooping P6, 2 million was paid by government for accommodation and meals for Members of Parliament and their spouses from October 31, to December 20, 2019.

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Budget 2021: BDP MPs smell a rat

1st March 2021
Minister of Finance: Dr Matsheka

Minister of Finance and Economic Development, Dr Thapelo Matsheka could be forced to provide a detailed explanation to a number of Botswana Democratic Party (BDP) backbenchers who are not impressed with Government expenditure for the 2020/21 financial year.

The unconvinced lot smell a rat and suggest that the Minister should furnish them with all the balance sheets for all the procurements and reports of all the transactions carried out by government from April 2020. This is so because within them, there is an air of disbelief in relation to the use of national funds by the powers that be.

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