Justice for Debswana’s contract spy at last

• Debswana to pay P110m plus interest to Infotrac and Motshidi
• Justice Tafa pronounces himself impressed with Infotrac
• Characterises former PSP Morupisi as “a witness of truth”
• Says he found Debswana lawyer Carr-Hartley’s arguments troubling
• Debswana concerned about reputational damage

This followed consultancy services rendered by the company that entailed lobbying for the appointment of the late Albert Milton as Managing Director for Debswana and succeeded.

Delivering the verdict on Thursday last week, Justice Abednego Tafa ordered Botswana’s richest parastatal to pay Mompoloki Motshidi and his company, Infotrac, the P110 million they sought and 10 interest percent per annum, as well as costs of suit. The judge said it was clear that the defendant and the plaintiff had entered into an agreement in 2017. He stated that the facts of the matter were that Infotrac was to provide consultancy services to Debswana, a part of which ensured the late Milton’s rise to the Debswana top post of MD.

However, following the successful lobbying of important stakeholders like President Mokgweetsi Masisi (then Vice President), former Bank of Botswana governor Linah Mohohlo, and erstwhile Director General of DISS Isaac Kgosi, Debswana subsequently on renege on the agreement. Justice Tafa said he was impressed by Infotrac’s 1^st witness, former Permanent Secretary to the President Carter Morupisi, who served as Deputy Chairman of the Debswana Board at the material time of the oral agreement.

Morupisi had said that the Managing Director of Infotrac, Mompoloki Motshidi had complained to him about delays experienced in payment. Morupisi added that he learned from Motshidi that upon raising the matter with the late MD, Milton had said he was aware of the issue and the pending payment. “This witness impressed me as a witness of truth,” Justice Tafa said of Morupisi. “He did not show any tendency to embellish his evidence in any way.” The judge added that what came out during Morupisi’s testimony was that security issues and services were privileged to management and security personnel at Debswana, hence Morupisi would not have been privy to much details as a Board member.

Regarding the version put before the court by Motshidi, it emerged that Debswana had on several occasions engaged the plaintiff and that no written contract was ever made save for email or cellular phone communication (WhatsApp messages). Similarly, said the judge, in the matter at hand, an oral agreement had been entered as had previously happened between the two parties. Significantly, Justice Tafa said Motshidi’s evidence came out as truthful during his cross examination by the defendant’s attorneys. “I found his evidence to be truthful and compelling,” he said.

“He remained calm throughout the proceedings, although there were times when he seemed slightly agitated when it was suggested to him that there never was a contract between the defendant and his company.” For its defence, the judge continued, Debswana relied on procurement procedures and argued that such an agreement would have been put in writing and ratified by the Board. Debswana maintained that for large expenditure contracts, it would have followed the procedure a tender process or purchase order. Justice Tafa noted that in civil cases, the burden of proof lies with the plaintiff. “It is trite that oral contracts are just as good as written contracts,” he said. “The major difference is when one party denies the existence of such (a) contract.”

Invoking of the Turquand Rule, Justice Tafa said that Debswana violated its rules and that the tender under question was not Motshidi’s problem. He noted that according to this rule, each outsider contracting with a company in good faith is entitled to assume that the internal requirements and procedures have been complied with. The company will consequently be bound by the contract even if the internal requirements and procedures have not been complied with, the judge averred.

In his verdict, Justice Tafa not only dismissed Debswana but also its lawyer, Carr-Hartley, saying he had had trouble with the lawyer’s arguments. “I do not agree with Mr Carr-Hartley … that (the Debswana) Group Head of Security would not be expected to enter into contracts of this nature,” he said. “It was conceded by DW2 that Kewakae was part of the executive. A contract to provide classified services is within the scope of his apparent authority. At any rate, there is evidence that the plaintiff had previously dealt with the security department of the defendant.”

Awarding the P110 million claim plus interest of 10 percent per annum, Justice Tafa concluded: “On the evidence adduced on behalf of the plaintiff, which I believe without reservation, I am satisfied that the plaintiff has proved its claim on a balance of probabilities.” Meanwhile, several people contacted after the judgement have express the view that it was high time the matter was brought to an end and agreed with the decision. At any rate, one said, the case was hurting the squeaky clean image and reputation of De Beers-Botswana joint venture.

Meanwhile a statement from Debswana has communicated concerns about the case reputational harm to Debswana. “We wish to reassure you of our unwavering commitment to continue to uphold the reputation of our company, and in that regard, we will employ our best efforts to see the matter to conclusion. We further reassure our business partners and all stakeholders of Debswana ‘s continued commitment to ethical business practices and adherence to corporate governance principles always,” Debswana’s Head of Corporate Affairs Rachel Mothibatsela said in the statement.