- Collins Newman & Co files notice to sue Minister Kgafela
- Wants termination of Grow Mine’s preferred lotto bidder status nullified
- Statutory Notice filed with Attorney General
In a move that seems to be the final attempt to get the termination of Grow Mine Africa (Pty) Ltd as preferred bidders for the national lotto nullified, Collins Newman & Co, a law firm under the captaincy of Managing Partner Parks Tafa, has filed a statutory notice to take the war to the Minister of Investment, Trade and Industry (MITI), Mmusi Kgafela.
The Business Weekly & Review has seen a statutory notice that is made in terms of Section 4 of the State Proceedings Act (Civil Action) against the government or a public officer (Cap 10:10). It was served to the Attorney General’s office on 17 May 2022. In terms of the Constitution of Botswana, when instituting legal action against a civil servant, a 30-day notice period is to be given to the Attorney General before such an action can be instituted.
This statutory notice was served in accordance with the terms of section 4 of the State Proceedings Act (Civil Actions) by or against government or public officer (Cap 10:01), giving the Attorney General a month’s notice of Grow Mine’s intention to institute review proceedings against Minister Kgafela. According to the statutory notice, Grow Mine’s cause of action is premised on the minister’s decision, delivered on 28 February 2022, in which he made a determination to the effect that he does not enjoy jurisdiction to entertain the appeal launched in terms of Section 48 (1) of the Gambling Act.
Grow Mine Africa (Pty) Ltd stated that after the statutory notice, it will make an application in terms of Order 61 of the Rules of the High Court for an order to review and set aside Kgafela ‘s decision that he does not have jurisdiction to determine Grow Mine’s appeal made in terms of Section 48 (1) of the Gambling Act. Further, Grow Mine will seek an order for the appeal to be remitted to Minister Kgafela for the determination of Grow Mine’s appeal on the merits.
Alternatively, Grow Mine wants an order for a review and setting aside of the decision of the Gambling Authority to terminate the National Lottery Licence negotiations with Grow Mine and revoking its status as preferred bidder. The minister had washed his hands of responsibility for intervening in a dispute between the Gambling Authority and Grow Mine.
In his ruling on 28 February 2022, Kgafela instructed the parties to resolve their differences at a different forum or to engage an arbitrator, saying he had no jurisdiction to preside over the matter. However, the minister 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.”
Minister 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 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 a 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 with the company around the lottery had proved unsuccessful.
It is understood that central to the decision to drop Grow Mine as the preferred bidder was failure by the company to raise a funding guarantee of at least P100 million that 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 bidder was revoked.
The Gambling 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,” the Gambling Authority said.