Wednesday, July 28, 2021

BCL in court over contract termination

Disposal solutions company, Infobuild Marketing (PTY) LTD has taken the embattled government owned copper nickel company, BCL to court over termination of contract. 

The company now demand to be paid money amounting to over 700 million Pula (P 773 061 217. 00m) for breach of contract by the Selibe Phikwe based BCL. 

According to documents before court, Infobuild Marketing was engaged on a three year contract with BCL to design a solution to clean water, and reuse the dirty water, sell it back to BCL as well as to enjoy the benefits of collecting and dispensing of impurities found therein.

It is said that Infobuild Marketing was to build a water treatment plant and reclaim for its own benefit in precious metals in waste water, to treat and clean water and then supply SPEDU agricultural Projects and BCL to pay P9.00 per cubic meter which the cost is less the P 14.00 per cubic meter levied by water utilities.

After been granted an interim order by the High Court, Infobuild Marketing sued BCL money amounting to over P700 million for breach of contract as contained in the Memorandum of Agreement.   

The troubled copper nickel producer, BCL has however appealed to the Court of Appeal a recent decision of the High Court to interdict and restrain them to Re-tender. 

Infobuild Marketing attorney, Sidney Pilane told the court of Appeal that his client is entitled to P25 200 000.00 being loss of profit for the installation of the water treatment plant and P747 861 217.00 for the profit to be generated from the running of the plant making a total of P773 061 217.00. 

It has also emerged in court this week that the two companies had during the negotiations made several suggestions on how BCL was to pay for the installation and supply of the treated water. 

When appearing before the Court of Appeal, Infobuild Marketing Company accused BCL of acting in bad faith by unlawfully terminating its contract and later used its protected intellectual ideas to re-tender to the third party without their consent, of which BCL said it did not acted unlawfully.

Attorney representing Infobuild Marketing (PTY) LTD Sidney Pilane argued that Infobuild Marketing stands to lose from the use of its ideas, labour and financial input if the Court of Appeal can reverse the decision of the High Court by ruling  in favour of BCL.

‘’The loss is irreparable in that the amount of goodwill that would be generated by a project of this nature, we submit, is unquantifiable. This is so because it is impossible to approximate the impact the project will have on the stature and reputation of the applicant within the industry, other than to say it will be positive.” said Pilane

Pilane said, the estimated value of the feasibility study of the Project to the applicant is in excess of 33 million Pula. The nature of the work undertaken by the applicant, its contractual relationship with the BCL and nature of technical personnel involved in the matter makes the case a particular complex one.

The operational life span of the water treatment plant that was to be installed by Infobuild was 15 years making a profit of over 700 million pula profit.

On its founding Affidavit, Infobuild Marketing Company reveals that the Agreement entered into with BCL was preceded by two ‘’Non-disclosure Agreements” concluded by the two parties on the 13th March and 17 July 2014.

Infobuild submitted that the information used to prepare the Notice of Tender with a heading” Expression of Interest for Water Treatment BCL Mine at Selebi Phikwe, Inquiry No.11648 from third parties as appeared on the 29 November 2015, Sundaystandard and Mmegi Newspaper is covered by confidentiality clause and Non ÔÇôdisclosure agreement and could not be used without consent.

After Infobuild Marketing approached the court, Judge Dube then acted in their favour and issued an interdict and a restrain order to stop BCL from proceeding with the tender pending the final determination of substantive issues under the Agreement entered into by BCL and Infobuild Marketing (PTY) LTD on the 13th August 2014.

This week, BCL through Thapelo Attorneys then approached the Court of Appeal arguing that the judge of the High Court erred in law by making an incompetent order for an interdict pending final determination of the matter.

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