Sunday, July 3, 2022

Did Debswana attempt to settle with Infotrac out of court?

Letters between Debswana and Infotrac legal representatives indicate the two parties were at some point willing to settle the P110 million lawsuit out of court.

Debswana particularly, did not seem averse to the idea of discussing an amicable solution to the matter. In one of the letters between the two (dated October 29, 2020) Debswana, through their lawyers, acknowledge receiving communication from Infotrac which communication they said they were responding to. The letter from their lawyers states how the mining company is amenable to considering any reasonable offer of settlement that would assist resolve the dispute.

“That having been said, the proposed settlement detailed on the second page of the letter under reply is not a settlement offer at all, but rather a requirement that our client pays all amounts claimed in the litigation,” says the letter from Debswana lawyers. “A settlement envisages each party moving away from is (sic) original position and compromising their respective positions,” the letter continues.

A subsequent letter from Debswana lawyers, dated November 9, 2020, says the diamond company would consider any “reasonable settlement proposal” made to them.

The letter also makes reference to Infotrac’s openness to the “issue of potential settlement of the matter”.

Debswana has in its Court papers, attempted to distance themselves from the deal arguing that the agreement between its executive employees and Infotrac should not be found to be binding to the diamond company but rather to the individuals (all three of who have since been sacked) because due process was not followed.

The mining company had argued that should the court find that executives did enter into the contended contract with Infotrac, such contract would be binding on the executives to the exclusion of the company. Justice Abednego Tafa however invoked the ‘Turquand Rule’ which stipulates that each outsider contracting with a company in good faith is entitled to assume that the internal requirements and procedures have been complied with.

Justice Tafa recently ruled against Debswana in the lawsuit in which Infotrac says they were engaged by the company to provide consultancy services to ensure that the late Albert Milton would be appointed as Managing Director and that they would be paid P110 million for their services.

The consultancy services involved lobbying and engaging with stakeholders for support. The company was also engaged to investigate an alleged romantic affair between the late Milton and a junior employee, Candy Godie, following an anonymous tipoff. Infotrac were appointed to investigate the alleged affair and any favoritism which might have been shown by Milton to Godie in the workplace as a result of the alleged affair. The company carried out the investigation and submitted its report.

The investigations, the Court heard, were instigated by Debswana represented by its executives (Group Head of Security based in Gaborone, Kewakae, and Head of security at Jwaneng, Keitumetse and Senior Human Resource Manager, Mazwigila) and the late Milton himself. Tafa delivered an order in favor of Infotrac in the sum of P110 million plus interest at 10% per annum from the date of the demand for payment. Debswana have expressed their intention to appeal the ruling. “Debswana wishes to express disappointment at the outcome of the litigation matter between the company and Infotrac as delivered by the courts today,” the company said following the judgement.

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