Thursday, February 9, 2023

ODC hides behind ‘state secrets’ in stolen intellectual property lawsuit

State owned Okavango Diamond Company (ODC) has decided to pull the “highly confidential” veil to avoid providing evidence that they did not steal a local entrepreneur’s intellectual property.  The company faces a 133 million Pula lawsuit for rejecting a local businessman’s proposal only to implement the same idea months later as their own. Local company Compadre Solutions had offered to facilitate ODC’s market exploration in Dubai at a time when the state owned Diamond Company was struggling with diamond sales. The conversation about exploring the Dubai market began in October 2020 when the company’s Managing Director (MD) Isaac Leshona wrote to the Ministry of Minerals and ODC proposing to facilitate the latter’s diamond stockpile auction at the Dubai Diamond Exchange (DDE).

On various dates between October 5, 2020 and November 12, 2020, Leshona shared a business proposal (titled : O.D.C Diamond Auction, Dubai) with indicative quotations, offering to support ODC with facilitation and marketing solutions to promote and sell ODC products by venturing into the Dubai market and participating in auctions at the DDE. The State enterprise however told Leshona they had their own sales channels and were not interested in exploring Dubai. Leshona was however shocked to discover in 2021 that ODC had in fact decided to pursue the Dubai market without his involvement. The Compadre Solutions MD has now filed multi-million Pula lawsuit against the state company. As part of the lawsuit Leshona, through his lawyers Piyush Sharma Attorneys, also filed a notice to inspect ODC’s documents relating to their participation at the DDE in order to satisfy himself that indeed the state company’s activities in Dubai did not originate from his rejected proposal.

ODC has however objected to some of the demands, hiding behind “confidential information and commercial propriety information relating to ODC and the Government of Botswana”. Leshona wants ODC to produce records of their strategic and/or executive decisions (resolutions) from June 1st to September 30, 2021 in relation to their participation at the DDE, and motivation from ODC Management in support of the resolutions. ODC in their response to the Notice for inspection claims (among other reasons) that the said documents are not necessary for the issues in dispute. Leshona however finds the reasons for the objections “untenable”, saying the documents requested are at the core of his case, being that having received and interacted with his proposal, ODC used the same or substantial parts thereof to develop plans of its own, and ended up participating at the DDE in the manner and fashion proposed by him.  While ODC claims they participated at the DDE through an invitation by Botswana Investment and Trade Centre (BITC) as part of the Dubai Expo 2020 the company has also failed to avail the said invitation.

“In its notice to inspect, the Defendant (ODC) omitted to provide ‘Copy of Invitation from the Botswana Investment and Trade Centre for Defendant to participate at the Dubai Diamond Exchange (DDE)’ which the plaintiff (Leshona) had requested being acutely aware that the organization of events at the DUBAI EXPO 2020 and at the Dubai Diamond Exchange (a part of the Dubai Multi Commodities Centre) were different and required separate invitations. It was the Plaintiff’s proposal to facilitate the Defendant’s first ever participation at the Dubai Diamond Exchange and not the DUBAI EXPO 2020,” Leshona writes in his court papers, in reaction to ODC’s failure to honour the Notice to Inspect.

The entrepreneur believes ODC implemented the business strategy that was originated, motivated, proposed and authored by himself, without his consent. That ODC is in breach of his Copyright over the document, and he is concerned that if not restrained, the state enterprise will continue to benefit from adaptation of his proposal without reference to himself for consent and/or offer of equitable compensation. Six months prior to ODC’s participation at the Dubai auction, Leshona expressed to Sunday Standard his apprehension about the state company possibly bypassing him and implementing his idea.

I suspect that my proposal and the reasoning I advanced in my emails to both Mr Mmetla Masire and Mr Marcus Ter Haar played a significant part in the resignation of Mr Ter Haar, as well as the subsequent employment of Mr Masire at the ODC. Furthermore, I also suspect that Mr Masire intends to implement the ideas I have shared with them in his new role,” Leshona told Sunday Standard early this year, April 19, 2021. Masire was Permanent Secretary (Minerals) at the time Leshona first approached ODC about the proposal. Ter Haar was the company’s CEO before being replaced by Masire.

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