DIS risks yet another humiliation
Correspondent | Friday November 27, 2020 14:39
For instance, after series of embarrassments from the way it treated China Jiangsu International (Botswana), it has shifted its focus to another company that was fairly allocated Phase 1 works contract in Selebi-Phikwe.
The Land Ministry Permanent Secretary, Bonolo Khumotaka did not want to discuss the project and politely requested this publication to re-direct its questions to DIS, which demonstrates that now tenders are awarded at the instance of the meddlesome DIS.
On June 3, 2020, SPEDU Limited awarded Marcian Concepts (PTY) Ltd works contract which entails the provision of detailed designs of infrastructure, construction of road works, storm water drains, water reticulation, sewer pump stations, power reticulation, street lighting and telecommunications. Its period of performance is estimated to be 15 months with a 12 months’ defects notification timeline.
In keeping with its character, the spy agency within few months before the awarding of the contract, DIS invaded SPEDU Limited offices and seized all the documents associated with this tender. It found zilch and returned the files. Despite the DIS poking its nose in this tender, the works contract for the design and building of Phase 1 infrastructure in Bolelanato and Senwelo Industrial Sites in Selebi-Phikwe progressed very well though there was lack of funding from the Ministry of Land Management, Water and Sanitation Services.
The project was interrupted few days before President Mokgweetsi Masisi’s State of the Nation Address (SONA) earlier this month. The progress of the project even made it into SONA. It is not clear what will happen to SPEDU Industrial and Urban Agriculture Land Service project, a 3, 500-job development, but the DIS will emerge from this battle bruised judging by its previous performance record in similar matters. The spy agency must re-read the Court of Appeal (CoA) Case No: CACGVB-035-20, in the matter between the Attorney General, Ministry of Land Management, Water and Sanitation Services, Public Procurement and Asset Disposal Board versus China Jiangsu and Zhengtai Group Botswana (PTY) Ltd. In the case, the Land Ministry had issued an invitation to tender for some water works. This was for the design, supply and build of water distribution network, sanitation, reticulation and other associated work in Maun and surrounding villages. PPADB awarded the tender to China Jiangsu, however it transpired before the ministry had issued a letter of notification of award to China Jiangsu, PPADB received a letter authored by the DIS advising that on some information received by DIS itself, China Jiangsu had been involved in activities that border on the company being a threat to national security. Justice Monametsi Stephen Gaongalelwe noted that it was clear that the ministry and PPADB received the letter in question before any contract was entered into. Gaongalelwe stated that in considering these kinds of applications, one of the paramount factors is to impart justice to the warring litigants and to the community. “In that regard important factors to be considered, he said, “include importance of the case, magnitude of the project and the welfare of the community at large. The considerations bring the question of public interest into play”.
In his matter, the learned Judge, continued, the project in question involves provision of water, an essential commodity in a wide area that has suffered inconvenience for some time. “Second respondent [Zhengtai…] commenced the works in October 2019 though it was latter interrupted by Court orders. As a direct result of such interruptions operations have stalled in immense prejudice to the community.”
He also said the balancing exercise in such situations is imperative because stopping works of a contractor is capable of having catastrophic consequences not only on the contractor on site but also to the community.
This could also apply to the SPEDU works project, a 3, 500 job development which ahs been halted by DIS investigation. Just like Zhengtai Group Botswana, the contractor in Selebi-Phikwe had already carried out some works involved. Marcian Concepts has also, to paraphrase Gaongalelwe in the China Jiangsu judgement, incurred expenditure on the project.
In the SPEDU case, when the contractor decides to take the matter to Court, the DIS will be humiliated and that will cost the procurement entity millions like in a Water Utilities Corporation (WUC) tender that was previously awarded to China Jiangsu International Botswana and Unik Construction Engineering in 2019. The DIS also interfered and informed WUC that China Jiangsu was a national security threat. This led to WUC in May 2020 entering into a consent order to pay the two companies P112 million for not executing the tender.
MOGAKOLODI MASOSOTE*
*Mogakolodi Masosote is a pseudonym of a senior attorney in private practice and writes about law for Mmegi