Saturday, October 24, 2020

MFDP loses stay-of-execution application over controversial tender

The Ministry of Finance and Development Planning has lost a case in which it wanted the Gaborone High Court to grant a stay of execution pending the determination of its appeal against judgement issued by the same court.

Unless it appeals this ruling, the ministry will be compelled to move its Accountant General department into a building owned by Varsha Enterprises. That is what the ministry was required to do in terms of a June 29, 2016 judgement in a matter in which Varsha challenged the controversial selection of Zambezi Motors as the winner of an office accommodation tender. In finding the award to Zambezi to have been riddled with a slew of irregularities, Justice Dr. Zein Kebonang made a substitution order re-awarding the tender to Varsha on the reasoning that the ministry and the Public Procurement and Asset Disposal Board could not be relied upon to re-run a fair tendering process. The ministry has since appealed this judgement at the Court of Appeal but in terms of Rules of the High Court, an appeal doesn’t operate as a stay in execution unless the court so orders. These are the circumstances under which the ministry returned to Kebonang’s court to seek a stay of execution.

The ministry mentioned as its main reason for its application, “strong prospects of success” at the Court of Appeal which has yet to hear the matter. One prospect it is trying to avoid is entering into a contract with Varsha which it says doesn’t qualify to get such contract. The ministry also raised concern about five of its officers (including a Deputy Permanent Secretary) being investigated by the Directorate on Corruption and Economic Crime as Kebonang expressly instructed in his judgement.

In his stay-of-execution ruling, Kebonang says that the ministry essentially complains about the effect of the judgement rather than its correctness.

“What is before me is essentially the unwillingness of the ministry of finance to have its officers investigated for potential acts of corruption. There is no attack on the merits of the judgement issued by this court. Rather, what comes across the application is a determined unwillingness to contract with the first respondent,” the ruling says.

The first respondent is Varsha which had deposed to an opposing affidavit that details the prejudice it has suffered and continues to suffer as a result of the ministry not entering into a contract with it. Kebonang refused the ministry’s application with costs. Outside the legal issues involved, the case is been significant for who the owners of the companies in question are. Varsha is owned by real estate and media mogul, Said Jamali, while Zambezi is owned by motor magnate and former race driver, Ishmael Nshakazhogwe.

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