Monday, October 25, 2021

Jamali ÔÇô Nshakashokwe legal battle opens can of worms

Three government departments which are tenants at businessman Saidi Jamali’s building which is at the centre of a legal dispute are unhappy with the building.

This came to light this week after High Court Judge, Zein Kebonang usurped the role of the Public Procurement and Asset Disposal Board (PPADB) and awarded a multi million Pula government tenancy tender to Jamali.

The tender is for space rental by Botswana Government’s Accountant General. Technical inspectors from the Department of Building and Engineering Services (DBES) had however determined that the building was not fit for purpose.

Justice Kebonang’s decision effectively means the Department of Accountant General will now join Auditor General, Central Transport Organisation and Legal Aid Botswana who have all registered their unhappiness with some defects in the building.

The court’s decision to award the tender to Jamali by-passes all evaluation stages that the PPADB was still to go through at the time Jamali took the dispute to court.

 The PPADB will tomorrow (Monday) lodge papers with the high Court seeking a stay of execution following Justice Kebonang’s decision. The Ministry of Finance and Development Planning which is the parent ministry for the Account General will also be appealing the court decision.

PPADB Executive Chairperson, Bridget John told the Sunday Standard in an interview that having studied the judgment, they do not agree with it and have thus instructed their lawyers to appeal it.

Sunday Standard can also confirm that the Ministry of Finance has approached Attorney General Chambers to register their dismay with the judgment. In response, Attorney General Dr Athaliah Molokomme has enlisted the services of a senior counsel to join PPADB in appealing the High Court judgment.

At the time Jamali rushed to court, the Accountant General was in talks with a company owned by Ishmael Nshakashokwe as part of pre-award negotiations. The negotiations had been sanctioned by PPADB.

It was then that Jamali approached the courts, saying his company should be given the tender because it was cheaper than Nshakashokwe’s.

The tender documents as seen by the Sunday Standard however indicate that price was not the only determinant that was going to be used to award the office rental tender.

Other than price, substantial importance has also been attached to quality of the building.

In his judgment the judge has also not provided any price of the rent which also has to be negotiated between the landlord and tenant before an agreement can be reached.

According to PPADB rules, there also has to be a comprehensive inspection by DBES to determine if the building is fit for purpose. The Decision by Justice Kebonang however bypasses all those stages.

This is not the first time the building is embroiled in a controversy.

A few years ago the Ministry of Defence tried in vain to rent the same building, but was overruled by PPADB for not following proper channels.

Justice Kebonang further said Deputy Permanent Secretary at the Ministry of Finance, Jacob Momene should be investigated for possible corruption.

The decision by a High Court judge to award a tender has a precedent the final outcome of which is still to be decided by the Court of Appeal.

A few years ago high Court judge, Abednico Tafa awarded the Metsimotlhabe infrastructure development by the Ministry of Lands and Housing to Zac construction.

PPADB appealed the judgment and the Court of appeal returned the matter to PPADB for reconsideration.

PPADB again took a decision against Zac Construction who in turn rushed back to the court and lost.

He has appealed the judgment which is yet to be heard.

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