Wednesday, October 21, 2020

Judge Dube slams the hammer on Sladden

Acting Lobatse High Court Judge Jennifer Dube has upheld the decision of arbitrator Anthony Dawson Allan that  Sladden International Botswana  should pay a local contractor, Landwards Property Limited, over P47 million following a dispute over the Nata-Kazungula road project. 

The dispute between the two contractors follows an agreement that they signed after Sladden International was awarded a tender for the reconstruction of the Nata-Kazungula road by the department of roads in 2009.

Landwards was contracted by Sladden International for the supply of road marking materials among others.

Court papers show that on September 8, 2010 Landwards informed Sladden International Botswana that material at burrow six would be depleted by September 9, 2010 and requested permission to move to another burrow pit.

Landwards received no response from Sladden International Botswana despite written communication thereof including a claim for outstanding costs and penalties until September 28, 2010.

A dispute arose between the parties. Landwards gave its written notice of dispute to Sladden International Botswana on September 29, 2010. In response Sladden International Botswana repudiated the agreement on November 10, 2010 that burrow pit six has been depleted and any arbitration proceedings would be defended.

Landwards claimed that it had performed all its obligations under the agreement and claimed damages from Sladden International Botswana as a result of the repudiation of the contract.

Allan as the arbitrator issued an award in favour of Landwards Property Limited. Sladden International Botswana then approached the High Court arguing that Allan committed some gross irregularities and exceeded his jurisdiction.

But Justice Dube found that the arbitrator enjoys large latitude in conducting arbitration proceedings as evidenced from the Rules for Conduct of arbitrators published by Botswana Institute of Arbitrators. She said Sladden International Botswana does not rely on alleged improperly procured arbitration or award under the arbitration Act.

Justice Dube found that at the centre of Sladden International’s grounds for review, the crux of the parties is burrow six.

“The applicant (Sladden International Botswana) argues that the contractually agreed site and where the 1st Respondent (Landwards) carried out the works under sub-contract is the unlicensed area termed Burrow Pit six,” she said.

Sladden International Botswana argued that the arbitrator went beyond his powers by first of all amending the separated issues and including in his award that there were more than two sites being unlicensed burrow pit six (which the arbitrator labelled BP/EXT)  and the licensed burrow pit six  (licensed under mining licence number 2009/26L).  By so doing, Sladden International argued that the arbitrator made findings contradictory to the pleadings thereby exceeding his powers.

Court papers show that there are two burrow pit sites (the unlicensed burrow pit six and the licensed area under no. BP 2009/26L also termed burrow pit six). 

The judge said from the reading of the record and the evidence submitted before court, her observations are that the unlicensed burrow pit six is the contractually agreed site; but confusion arises when mining license no. BP 2009/26L (which Sladden International Botswana says was issued by the Department of Mining by error though no confirmatory evidence from the Department of Mines was submitted) of ‘another site’ is used by Sladden International to facilitate an amendment of the programme of mining operations from burrow pit six to quarry.

Justice Dube found that the same mining license was used by Sladden International Botswana to obtain authorisation of an impact environmental impact assessment report by the Department of Environmental Affairs to mine on an unlicensed area.

She also found that the same mining license was also used by Sladden International Botswana to inform the authorities that Landwards had been appointed by Sladden for the sole management and mining of the site for the valid period of “our” mining license.

She also found that after the parties, more particularly Sladden International, realised that the works were being carried out on an unlicensed area (albeit unlicensed by error as alleged) and part of the drilling and blasting by Landwards had encroached into the area, efforts were put in motion to have the existing mining license extended to the unlicensed area.

Dube said it was not clear from the papers before her whether at the time the dispute arose such extension had been obtained.

“But, in my view, having regard to the use of the mining license of one area for the benefit of another mining area, I would not hesitate to ask the question “which burrow pit six” are we dealing with here,” she said.

According to the judge, Sladden International avers that by amending one of the separated issues identified and argued before Allen, by expanding thereon: “Which burrow pit six”  went beyond the pleaded case and introduced the second unpleaded site and extended site and acted unlawful.  But justice Dube found that the arbitrator had not misdirected himself.

Sladden International has since served Landwards with papers appealing Justice Dube’s decision.

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