Monday, November 29, 2021

P114 million bid-rigging case gets new chairperson

The appointment of Dr. Zein Kebonang as acting High Court judge has resulted in Tendani Malebeswa chairing proceedings of the P114 million bid-rigging case before the Competition Commission.

“As you may be aware, Dr. Kebonang is now an acting judge of the High Court,” Malebeswa said by way of explaining why he was chairing the proceedings when the case resumed last Monday.

The latter is a natural choice for such role because he is the only other lawyer in the six-member Commission. The other commissioners are Dr. Jay Salkin, Dr. Selina Peters, Phendisile Phuthego, and Gaylard Kombani. Commissioners, who are appointed by the Minister of Trade and Industry, are people “who have expertise in industry, commerce, economics, law, consumer affairs or public administration” according to prescriptions of the Competition Act.

Kebonang, whose full-time job was Director of Legal and Compliance at the Botswana Communications Regulatory Authority (BOCRA), has been chairing the proceedings of the case in which Creative Business Solutions and Rabbit Group are alleged to have colluded on a P114 million tender to supply schools across the country with sugar beans. However, late last month he was controversially appointed to the bench by President Ian Khama. In terms of the amount of money involved, this is the biggest bid-rigging case that the Commission has handled to date.

The Competition Act establishes the Commission which is the governing body of the Authority and is responsible for the direction of the affairs of the Authority. The Commission adjudicates on matters brought before it by the Authority and gives general policy direction to the Authority. There is a perception by some that in as far as the adjudication function goes, this relationship is riddled with conflict of interest. By a quirk of fate, attorney Sadique Kebonang (who is Justice Kebonang’s twin brother) represented four companies that challenged the law establishing the Commission, arguing the conflict-of-interest point. The Authority had taken the companies before the Commission for price-fixing which the Act prohibits. Sadique Kebonang is now the Assistant Minister of Trade and Industry under which both the Authority and Commission. However, the matter is still before the High Court.

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