Monday, October 18, 2021

Spanish company claims BDF was complicit in defrauding them of P90 million

The case in which a Spanish military and security company is suing the Botswana Defence Force (BDF) and Ministry of Investment, Trade and Industry branched off into new controversy as the company brings fresh accusations insisting that army officers initiated the contract in which it was defrauded over P90 million.

In papers before Justice Zein Kebonang, Suyfa Defence has cited BDF, Ministry of Ministry of Investment, Trade and Industry, its employee Kutlo Kalanke, one Benedict Molefe and his company Ottoppe Sonke Holdings.

Initially the company had stated that BDF through its employees was liable because they had invited the company to come and make representations and further attended a presentation meeting on or about 24th November 2016 which meeting was held at Seretse Khama Barracks Mogoditshane.

But now the company states that the BDF officers and Kalanke participated in drafting the fraudulent contract in conjunction with Molefe and his company.

“…It later came to the plaintiff’s (Suyfa) knowledge that the contract in question which was initiated and produced by the 1st and 2nd Defendants’ (Ministry and BDF) employees in conjunction with 5th and 6th defendants (Ottoppe Sonke Holdings and Molefe) was bogus and fraudulent and was a clear result of misrepresentation of facts which unfortunately misled and induced the Plaintiff, an innocent third party to sign the contract and pursuant thereto,” the company states through its lawyers Gobhoza Legal Practice.

Suyfa Defence states further that “…being an innocent trader was led to believe by the employees of the 2nd Defendant (BDF) acting in one accord with 4th defendant (Kalanke) an employee of 1st Defendant (Ministry of Trade that the contract in question was valid and legally binding on both the Plaintiff and the Defendant and verily believed that the documents that it signed which it had obtained through its agent recommended/identified by the 4th Defendant as way back as 2015 while attending the BITC Expo, were genuine.”

Therefore, Suyfa Defence says, it performed under the fraudulent misrepresentation of the Ministry and BDF’s employees and reasonably performed in compliance with the said contract on the belief that it was a valid binding contract.

The company said it was induced to enter and sign the contract in question by the employees of both Ministry and BDF through the “fraudulence and misrepresentation who were at all material times acting within the course and scope of their employment in that they acted during their working hours, within their workplace and acted in their official capacities using Government protected seal, uniform and official stamps.”

According to the lawyers, following an invitation by BDF, Suyfa Defence, through Fernandez attended and made presentations on 24th November 2016 at BDF’s instance and request at Sir Seretse Khama Barracks, Mogoditshane, “which presentation meeting was fully attended by several unformed Botswana Defence Force officers of different ranking whose names and details are to the Claimant, unknown. The company further BDF employees, “particularly Brigadier Domcaza Kengaletswe Mokgwathi and whoever signed the letters purporting to be the latter acted fraudulently and maliciously by issuing such letters under the protected seal of BDF whilst  within the course and scope of their employment.”

The dispute arose after the company’s authorized agent one David Fernandez had participated at the Botswana Investment Trade Centre Trade Expo in 2015 which was held in Gaborone. Giving a background of the saga, the lawyers say it was during such a trade expo that Fernandez met an employee of the Ministry of Trade, one Kalanke who identified herself as Trade and Investment Officer within the Department of International Trade and responsible for facilitating investment and trade deals.

The lawyers say that Fernandez having advised Kalanke of his company’s desire to either set up a distribution branch of its products in Botswana or make supplies of any desired military products to the Government of Botswana particularly through BDF, was advised by Kalanke that her office would link them up with a local business person whom they could join hands with and proceed with their intensions.

“Indeed Ms Kalanke proceeded to give the name of the said recommended citizen as one Mr Benedict Tebogo Molefe, a Director of a locally incorporated company called Outtoppe Sonke Holdings (PYT) Ltd,” say the lawyers. 

The company says it paid Molefe (who was supposedly its middleman) and his company more than P7 million being the agreed half share of the commission which was due and payable upon signing of the contract. The company also acquired from its suppliers goods amounting to more than P80 million.

The company is therefore demanding more than P90 million and interest at the rate 10 per annum from the Ministry, BDF and Molefe.

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