Thursday, October 28, 2021

For now, BIUST fails to cancel P14.6 million security contract

The job security of some 150 security guards in Palapye hangs in the balance as the Botswana International University of Science and Technology (BIUST) tries to terminate a three-year contract with a company called Gilt Security Services.

BIUST, which is located in Palapye, engaged Gilt on September 6, 2016 to provide security services. The letter of award, which was addressed to a Themba Ngurunyoka, asked the company to confirm acceptance of the offer within two days failing which the P14.6 million contract would be passed on to another bidder. The letter also stated that upon acceptance of the offer, Ngurunyoka would be required to sign a contract. The company accepted the offer but fatefully, the contract was never signed.

On January 10 this year, BIUST Vice Chancellor, Professor Otlogetswe Totolo, gave Gilt a one-month notice of termination effective from that date. Totolo’s letter doesn’t state the reasons for the termination but in the ensuing court case, the latter were cited as Gilt’s unsatisfactory performance as well as failure to vet employees, employ a project manager, provide necessary equipment and curb theft.

Taking stock of the situation, the company rushed to its lawyers, Ramalepa Attorneys, who fired off a response letter the same day rejecting the termination. The letter describes the September 6 letter as the only governing document of the agreement between the two parties.

“The letter of award is very clear that our client was awarded the contract in question for a fixed period of 36 months. This means that neither party is at liberty to terminate the contract save for the expiry of the said period of 36 months. You therefore have no justification whatsoever to terminate the said contract to the prejudice of our client,” reads the letter from attorney Thembani Jeremiah.

The letters adds that the company has specifically contracted 150 employees for 36 months to execute the BIUST job and that termination will expose it to “multiple lawsuits.”

BIUST brought in its own lawyers, Desai Law Group, who rebutted the assertion that the letter of award was the governing document of the agreement. The lawyers stated that the contract was subject to the terms and conditions set out in the bidding documents. Naturally the matter ended up in court, with Gilt seeking an interim interdict against the termination that BUST sought. When ruling in favour of the company, Justice Dr. Zein Kebonang concurred with the argument made by Gilt.

In my view, there can be no doubt that the letter of award constituted or conferred on the applicant a right to a three-year fixed contract,” said the judge in his ruling, adding that he is satisfied that Gilt’s right to protect its commercial interests has been established. “In any event, the letter of offer was drafted by the respondents and if there was any ambiguity, such must be interpreted against them. By the respondents’ own admission, the contract between the two parties was not an indefinite but fixed one. In this regard, consistent with the duty of good faith which is an inherent feature of every contract, the respondents must be taken to have intended to be bound by the terms they specified in the offer letter.”

For now, the jobs of Gilt’s staff are safe and at some point in the near future, there will be a review application. Justice Kebonang said that only during the latter application can the reasons that BIUST cited for wanting to cancel the contract be legally tested.

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