- Advises Gambling Authority to consider a retired judge to settle the matter
- Clears the way for Gambling Authority to invite Ithuba Solutions
Grow Mine had appealed the Gambling Authority’s decision to terminate its license to Minister Mmusi Kgafela, claiming unfair treatment at the hands of the Gambling Authority. But in his ruling, Kgafela instructed the parties to resolve their differences at a different forum or engage an arbitrator, saying he had no jurisdiction to preside over the matter.
However, the minister has also directed that the Gambling Authority may proceed with negotiations with another bidder, Ithuba Solutions, for a possible award of the tender. He had earlier restrained the Gambling Authority from continuing with its negotiations with Ithuba after Grow Mine launched the appeal.
Delivering his ruling, Minister Kgafela – who is a lawyer by training – stated: “I have consequently concluded as contended for by Ithuba that I have no jurisdiction to hear and to determine this appeal. I have no jurisdiction and I accordingly remit the matter back to the parties for them to consider an alternative forum to which they can go and settle their differences.”
Kgafela noted that when this matter came before him, he became curious as to why the parties had not resorted to arbitration in terms of Clause 11.11 of the Request for Applications for the National Lottery Licence, saying it seemed to him that that it would have been the appropriate route to have taken.
“To speed up the decision-making process, I have previously considered outsourcing the task of deciding this appeal to someone or two persons with extensive experience in judicial work, given that a minister in my portfolio generally travels across the globe frequently on international trade matters,” said Kgafela, adding that a minister is therefore often not available to do this kind of judicial or quasi-judicial work.
For this recommendation, Kgafela said he had in mind a few of Botswana’s retired judges of the High Court and of the Court of Appeal. “However, after looking at the Public Authorities (Functions) Act, especially Section 5(2) (c) therefore I became persuaded that a minister cannot delegate the hearing of an appeal to any other person,” he said. “The outcome of this appeal might otherwise have been accomplished much sooner than today.
“The matter is accordingly remitted to the parties to go and resolve it at another forum. The directive which I had issued restraining the Gambling Authority from commencing negotiations with Ithuba is hereby discharged.” Grow Mine, which is a consortium of high-profile local businesspeople and corporate entities, was awarded the 10-year licence to operate Botswana’s first national lottery in June last year. However, the Gambling Authority revoked Grow Mine’s status as the preferred bidder, noting that negotiations around the lottery had proved unsuccessful.
It is understood that central to the decision to drop Grow Mine was failure by the company to raise a funding guarantee of at least P100 million which was one of the requirements for the licence. In a statement after terminating Grow Mine’s licence, the Board of the Gambling Authority said negotiations with Grow Mine had been unsuccessful and consequently the status of Grow Mine as the Preferred Applicant was revoked.
The Authority said the decision followed Grow Mine’s failure to satisfy a key, non-negotiable requirement of the Request for Applications for the Licence to Operate the National Lottery, as well as a key undertaking made in the company’s application and in presentations to the Evaluation Committee. “As a consequence of this revocation, the Board has resolved to invite the Reserve Applicant to negotiate the Licence to Operate the Botswana National Lottery.”
