Monday, November 29, 2021

SPEDU quarter billion corruption case opens at the High Court

Was the Public Procurement and Assets Disposal Board (PPADB) duped into awarding the quarter billion-pula contract for the SPEDU construction projects aimed at revitalizing Selibe Phikwe and surrounding area to a quack building contractor with forged credentials?

This is the question High Court Judge Tshegofatso Mogomotsi will be grappling with in a legal battle in which Marcian Concepts is seeking to overturn an order restraining their payment of P32 million obtained by the Directorate on Corruption and Economic Crime (DCEC) through the Directorate of Public Prosecution (DPP).

This case is a forerunner to an ongoing DCEC investigation into a suspected sprawling tangle of corporate and civil service racketeering involving, SPEDU, PPADB, private lawyers and construction industry big shots in the award of the tender. It is a case with many questions and sub-plots suggesting a web of corruption.

Documents passed to the Sunday Standard suggest that this is the case that cost former SPEDU CEO, Mokubung Mokubung his job.

The former SPEDU boss was taken to task for ignoring a letter from his boss, Permanent Secretary in the Ministry of Land Management, Water and Sanitation Services Bonolo Khumotaka dated 4th September 2020.

Khumotaka was relaying Minister Kefentse Mzwinila’s instruction that Mokubung should suspend a quarter billion Pula tender which SPEDU had awarded to an obscure building contractor called Marcian Concepts under questionable circumstances.

Mokubung tried to push the hot button issue to the SPEDU board. The board immediately pushed back. On 15th September, board Chairman Obonetse Mothelesi wrote to Mokubung, throwing the embattled CEO under the bus for allegedly trying to use the board to cover for his failure to carry out the minister’s instruction.

Meanwhile, Marcian Concepts was hard at work setting up office, fencing the site and buying a fleet of vehicles for the P230, 695, 655.92 Design and Build of Phase One infrastructure in Bolelanoto and Senwelo Industrial Sites, Selibe-Phikwe.

Six months and P31 million later, Mokubung exited the SPEDU corner office under a cloud, accused of failing to carry out lawful instructions.

Marcian Concepts subsequently approached the courts and obtained an order that it be paid P31, 823, 337. 71 by SPEDU for services rendered.

A number of difficult questions arose on how Marcian Concepts was awarded the multi-million Pula tender in the first place.

A Companies and Intellectual Property Authority (CIPA) company search turned up information that Marcian Concepts was incorporated on 30th October 2013 and re-registered on 8th July 2019 around the time the tender was being put together. Its sole director and shareholder, Emmanuel Moyo assumed ownership of the company on 4th July 2019.

As Marcian Concepts approached the courts, the DCEC initiated investigations into allegations that the evaluation of the tender may have been rigged because the company has no prior experience on such projects; it is not registered for the Economic Diversification Drive (EDD) although it filled out an EDD form’ and had no plant and equipment which was inconsistent with its classification as an E- grade company. Other bidders were disqualified on the basis of some of the above deficiencies.

The questionable classification of Marcian Concepts as an E-grade company took the DCEC to the PPADB where the registration paper trail has allegedly been destroyed.

A PPADB manager who is implicated in the alleged fraudulent registration of Marcian Concepts as an E-grade company has resigned while his alleged co-conspirator in being investigated. The hard drives used in the registration are reported missing and PPADB is believed to have filed a theft report of the missing hard drives with the Botswana Police Service.

Marcian Concepts, which is a construction green horn is believed to be fronting for a bigger contractor which has decided to remain in the shadows. The DCEC is reported to be following the money trail, hoping it will lead them to the invisible hand behind the alleged sprawling corruption. Unconfirmed reports claimed that the account numbers assigned in the documents of the controversial tender allegedly do not belong to Marcian Concepts and are believed to be leading to the puppet master.

The controversial project is part of the P1.2 billion SPEDU Industrial and Urban Agriculture Land Service project, a 3, 500-job creation initiative that President Mokgweetsi Masisi mentioned in his November 2020 State of the Nation Address (SONA)

In what promises to be a titanic legal battle between the DPP team marshalled by Ernest Mosate and Marcian Concepts lawyer led by veteran lawyer Unoda Mack of Bahuma Attorneys, the Court will be asked to rule whether the P32 million paid to Marcian Concepts was proceeds of crime. The Court will also make a determination on whether Marcian Concepts falsified PPADB documents and presented them to SPEDU to mislead the Selibe-Phikwe parastatal into awarding them the multi-million Pula contract.

In his founding affidavit, DCEC anti-corruption officer Tekanyo Kaelo states that the P32 million which the High Court had initially ordered that it be paid to Marcian Concepts be placed under restraint as it constitutes proceeds of serious crime related activities. He added that the Court in a separate judgement relating to the same matter, never considered/determined the underlying cause or basis of the conduct of or award of tender in the matter of Marcian Concepts and SPEDU. 

The judgement in question relates to a case in which the company successfully obtained an order that it be paid P32 million by SPEDU as per their signed contract. 

According to Kaelo, the DCEC became aware of the details relating to the money being proceeds of crime following the High Court judgement to the effect that SPEDU should pay Marcian Concepts. 

“The money is restraint for the purpose of satisfying a Civil Forfeiture Order, which is a property-specific order,” he said.

He said it was improper for Marcian Concepts to accuse the DPP of abusing the Court process and acting in bad faith by alleging that the latter knew of the alleged crime on 16th June 2020. 

Kaelo said the PPADB has come out clearly in support of DPP’s case that the purported Grade E certificate is fraudulent and this is one of the issues to be determined. He said Marcian Concepts had admitted that it never had a Grade C certificate. “Applicant never had a grade C and could not have firstly have applied correction codes when in fact and law were not holders of Grade C, further could not have been lawfully approve for Grade E which it never applied for and had no previous lower grades,” said Kaelo. 

He said the company must answer whether it applied for Grade E and provide the application it made to PPADB for Grade E, given that DPP had averred absence of such application and denies the meeting alleged to have allocated Grade E certificate never took place. 

In its application to overturn the restraining order, Marcian Concepts through its director Emmanuel Moyo argued that from the restrained P32 million, the company was entitled to P3 million for legal expenses, P3 million for expenses or working capital and living or working expenses for its management or staff totalling P500 000 monthly. 

He said the DPP and the DCEC confirmed that they developed interest in the matter and started investigations on 16 June 2020, yet the state sat idle and did not intervene until now. He said the restraint application is an abuse of process and is couched in bad faith because the DPP knew of the alleged crime on 16 June yet it awaited the signing and execution of contract, employment and deployment of staff, purchase of material and machinery and performance of works before taking action. Accusing the State of acting in bad faith, Moyo said, the DPP approaches the Court at a point where works have commenced and invoices due and purports to challenge the property of an award it has long known about.

Approaching the High Court on urgency this week, the company argued through Mack that if indeed Marcian Concepts had defrauded the State, the PPADB should have been the one to approach the High Court as it was the authority that awarded the tender and not the DPP. For his part, Mosate argued to that the company had failed to furnish the court with documents showing that indeed it was entitled to some expenses that it had cited in its application.

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