Documents passes to The Telegraph reveal that failure to honour contractual obligations with contractors by the Department of Roads is costing the tax payer millions of Pula.
It is understood that contactors have lined up law suits in which they are suing the Roads Department for failing to honour contractual obligations.
In one of the cases concluded recently, Gaborone High Court Judge, Justice Key Dingake ordered Roads Department to pay Sedudu (Pty) Ltd over P4 million following a dispute over a breach of contract.┬á The matter emanates from a project which was awarded by the Roads Department to Sedudu for the construction of the upgrading of drainage works in Mathubudkuwane village.
The main bone of contention which culminated into a dispute is that Sedudu was informed through a later dated 24th January 2012 that the Department of Roads was withdrawing its letter of acceptance to an offer earlier made by Sedudu.
According to the letter, “the Department’s decision to withdraw the acceptance letter sent to Sedudu (Pty) ltd on the 29th July 2008 and subsequently accepted the offer on 30th July 2008 to date still stands. This is because the contractor has not fulfilled the requirements of the contract even though several letters of warning to terminate the contract has been sent.”┬á It also emerged that Roads Department had also demanded that Sedudu Pty Ltd should furnish it with the performance security as per the specifics of the tender.
But Sedudu argued that it had obliged to the requirement and engaged Kelly Phala as the arbitrator. The contractor also wrote a letter to Roads Department advising that it should retract and withdraw the letter as they viewed that as a breach of the contract.
Legally, Phala found that an acceptance cannot be withdrawn. “It is trite law that an offer (in this case having been made by Sedudu and accepted by Roads Department ┬ácan indeed be withdrawn and revoked before it is accepted,” said Phala. Such an offer by Sedudu was never withdrawn at any stage, said Phala.
Phala found that a valid contract had been entered into and ought to have been brought to an end in a judicious, equitable and fair manner.
Phala’s final findings were that the Roads Department breached the terms of the contract and that Sedudu (Pty) ltd suffered damages to this anomaly.┬á Through their attorneys, Sedudu made an application before the High Court and Justice Dingake ordered that the award to Sedudu made by Phala be enforced as a judgement of the court.
Court documents passed to The Telegraph also show that the Roads Department has been hauled before ┬áthe court┬á by contractors in Shumba Projects (Pty) Ltd Pick and Shovel ┬á(Pty) Ltd who were jointly claiming over P4 million. But Moatlhodi Marumo as the arbitrator only awarded the two contractors, more than 1 million Pula.
The documents show that the matter arose from a tender for the construction of Mopipi village access road awarded to Shumba which later assigned the contract to Pick and Shovel. The latter proceeded to execute the work.┬á But Roads Department later terminated the contract arguing that Pick and Shovel was unable to pay its debts and terminated the latter’s contract. However, Marumo found that it was not for the Roads Department to make subjective decisions that the company was unable to pay his debts and then proceed to terminate contract. The contractors have since approached the High Court praying Justice Bengbame Sechele to make Marumo’s decision an order of the court.