Victory for grow mine africa!
• The victory means Grow Mine will proceed with multi-billion pula lotto licence negotiations with the Gambling Authority • Justice Motumise defers reasons for dismissal of Ithuba’s case
Grow Mine Africa (Pty) Ltd, the preferred bidders for the multi-billion pula national lotto tender, will enter into negotiations with the Gambling Authority for issuance of the national lotto licence following a court ruling in their favour against contestant, Ithuba Solutions (Pty) Ltd.
On Thursday this week, Justice Omphemetse Motumise dismissed a case in which Ithuba Solutions Propriety Limited (Pty) Ltd had filed an urgent application towards the end of last year to interdict negotiations of a lotto licence agreement between the Gambling Authority and Grow Mine Africa.
Justice Motumise did not give reasons for dismissing the case but said full judgment would be made on 15 February 2021. It emerges however that Ithuba Solutions lost the case with costs.
The Gambling Authority is headed by Chief Executive Officer (CEO) Thulisizwe Johnson and is represented by Sipho Ziga of Armstrong Attorneys.
On the other hand, Grow Mine Africa’s victory was led by Parks Tafa, Managing Partner at Collins Newman & Co. The contestant, Ithuba Solutions, was represented by Walter Mushi, Partner at Desai Law Group. Rizwan Desai is the Managing Partner at Desai Law Group.
Grow Mine Africa’s victory means they will be able to proceed with lotto licence negotiations with the Gambling Authority.
While Grow Mine has worn this one case, they still have other cases pending before the courts.
At Collins Newman, Tafa, together with his counterparts at Armstrongs, are also fighting hard to convince Justice Motumise not to order a review of the Gambling Authority’s decision to select Grow Mine Africa as preferred bidders (main application).
Regarding the urgent application to interdict the lotto licence negotiations, Desai Law Group had filed an application mid-October last year to have the national lotto licence negotiations between the Gambling Authority and Grow Mine Africa stopped.
After Grow Mine Africa was selected as preferred bidders, the next step was to negotiate for a national lotto licence, which Armstrongs Attorneys indicated in available evidence that the Gambling Authority intended to have the negotiations completed by 30 November 2020. This follows a letter dated 19 October 2020 written by Gambling Authority lawyers, Armstrong Attorneys, indicating that the lotto licence applications were expected to commence around 16 November 2020.
The negotiations have since been delayed.
Ithuba’s urgent application (represented by Desai Law Group) sought to stop the Gambling Authority from negotiating and subsequently awarding the national lotto licence to Grow Mine Africa. Ithuba’s grounds were that in selecting the preferred bidder, the Gambling Authority violated the Gambling Act, as well as the Public Procurement and Asset Disposal Act (PPADA) and its regulations.
Further, some of the reasons, according to Ithuba, were that the Gambling Authority had fundamentally departed from the requirements of its own Request for Application (RFA) and the ordinary process that would be expected in relation to the evaluation of the tender.
Ithuba Solutions argued that the Gambling Authority ignored its application to have the Gambling Authority’s decision reviewed. Consequently, Ithuba wanted the Gambling Authority stopped from taking any further actions involving negotiating the terms of a licence agreement and its conclusion. Ithuba also wanted the Gambling Authority to be stopped from consulting with the Minister of Investment, Trade and Industry for purposes of issuing a licence under Section 62 of the Gambling Act.
Through DLG, Ithuba Solutions argued that the tender process should be suspended because if it is not, the Gambling Authority and Grow Mine would continue to implement the decision and entrench Grow Mine’s position as the preferred bidder, to the extreme detriment of Ithuba. Further, Ithuba believed immediate suspension is imperative to protect and preserve its rights and to ensure the continued integrity of Botswana’s first national lotto licence.
According to Ithuba, it was also in the best interests of the public to suspend any further steps because it avoids wasting time and resources of the taxpayer on actions taken in pursuit of an illegal decision. With the main application before court, Ithuba believed it was in the interests of justice that no other decision is taken to undermine, pre-empt or render hollow the outcome of the court in the main application by the Gambling Authority proceeding to conclude negotiations and signing a licence agreement and Grow Mine proceeding to implement the licence.
In the application, Ithuba argued that it did everything to prevail upon the Gambling Authority to suspend the present tender so that the issues in this review may be ventilated properly. “Despite repeated requests, on numerous occasions, the Gambling Authority remains intransigent,” Ithuba wrote in the interdict application. “It is determined to roll out regardless, to the extreme detriment of Ithuba and contrary to the national interests.”
However, in its answering affidavit filed in Court last year, the Gambling Authority (through Armstrong Attorneys) said the Public Procurement and Asset Disposal Act 12 of 2008 and its regulations are inapplicable to the process in question because the awarding of a national lottery licence does not constitute procurement or a disposal of a public asset as defined by the Procurement Act. According to the Gambling Authority’s affidavit, it follows that Ithuba’s repeated allegations that the Gambling Authority’s decision was made in breach of the Procurement Act are baseless. Similar arguments were adopted by Grow Mine Africa.
The Business Weekly & Review learns however that the licence negotiations commenced mid-January 2021. By losing the urgent interdict application, Ithuba has failed to stop the licence negotiations.
Despite its victory, Grow Mine Africa is currently engulfed in internal wars. Board Chairperson Chandra Chauhan, also Sefalana Group MD has a pending case with the then Managing Director Percy Raditladi.