Infotrac P110m demand outrageous-CoA
Mpho Mokwape | Monday September 25, 2023 06:00
The judges, CoA President Tebogo Tau, Justices Singh Lakhvinder Walia and Johan Froneman all agreed that the P110 million demanded by Infotrac was highly improbable.
“The alleged fee is so outrageous and preposterous for the work that was alleged to have been done by Infotrac, as to defy any semblance of commercial probabilities,” agreed the judges.
The Mining giant Debswana’s victory against the spying company, Infotrac, comes after it launched an appeal against the P110million lawsuit. Debswana had lost the High Court case in June 2022 when former Judge President Abednigo Tafa granted the spying company the judgement.
Infotrac had sued the diamond giant seeking relief for payment of the sum of P110,000,000 with interest for breach of contract.
The company’s claim arose from an alleged oral consultancy agreement entered into between the parties in which the company’s managing director contended that it was engaged by the diamond giant to provide among others spying job, a consultancy services to ensure that the deceased Albert Milton was appointed the Managing Director (MD) of Debswana. Debswana, being dissatisfied with the decision of the High Court, launched the appeal with grounds among others that the court was wrong.
In upholding the appeal, the CoA Justices agreed that the High Court was wrong in finding that there was nothing improbable about the amount of the contract fee being claimed. “Given that only three people were lobbied a fee of P110m is highly improbable.
The alleged fee is outrageous,” said the judges. The three bench judges agreed that the High Court misdirected itself on the bases that the evidence before them proved that Infotrac failed to prove its case and that on balance of probabilities, Debswana was the favoured one. Justice Tau explained that the finding of Justice Tafa that Debswana had entered into an agreement with Infotrac was not out of any record. “In our finding the court a quo that it was more probable than not that Debswana had entered into an agreement with Infotrac was not borne out of the record neither is the finding that the latter has proved its claim on a balance of probabilities,” she said.
She also said the High Court committed substantial misdirection which called for interference by the CoA. Justice Tau pointed out that through the evidence, there were many inconsistencies coupled with contradictions that the court a quo judge did not take into consideration.
“All these inconsistencies coupled with contradictions between evidence and pleadings create doubt as to whether there was ever an agreement between Debswana and Infrotrac,” she said. Justice Tau explained that in their view, the inconsistencies were material and therefore go to the root of the case and that since Debswana denied that there was an agreement between it and Infotrac, the latter had to prove that it was contracted by the diamond company to provide consultancy services. She emphasised that it was also for Infotrac to prove that Debswana agreed to pay the amount of P110m and as to how that payment would be effected and also prove as to who was involved during its engagement to provide the service.
“No such evidence was tendered by Infotrac’s witnesses and when looking at the evidence tendered by the company’s witnesses, there are contradictions that one wonders as to who actually represented Debswana during the contract,” said JusticeTau. The Judge asked that if a witness from Infotrac who represented the company during the contract could not say who actually represented Debswana, then who was going to know lamenting that it was not clear from evidence as to who represented Debswana. She also noted that it was not clear as to how much was to be paid because on one hand the witnesses said the amount to be paid was P110m and this was to be paid upon conclusion of the consultancy service while on the other hand the Tax Invoice which was submitted reflected an amount of P121,002,800. The judge also said it was not clear as to when and how payment was to be effected as on one hand it was to be effected after the rising of an invoice whilst on another instance payment was to be effected through the award of contracts.
“Though the evidence of Infotrac’s witnesses is littered with contradictions and inconsistencies the same cannot be said of the evidence of Debswana’s witnesses. Debswana’s witnesses gave straight forward evidence which was not controverted,” Justice Tau noted. In conclusion the justices agreed that Justice Tafa failed to see and evaluate the evidence before him therefore the appeal was upheld with costs. Meanwhile, the background of the case as depicted from the pleadings filed of record was that on or about December 2017 following a whistleblower report, an investigation was required by Debswana on an alleged relationship between the late Albert Milton and Onalenna Godie resulting in favouritism to the latter. According to court papers, a quotation was sought from Infotrac by Debswana for investigation and the company provided the quotation and it was issued in the amount of P136,640.00 inclusive of VAT. The quotation for the consultancy services was approved the same day and Debswana issued a purchase order in favour of Infotrac. “Consequent to that an agreement was concluded on December 2017 between the parties,” read the papers.
Further, on or about December 22, 2017 Infotrac reportedly submitted a tax invoice in the agreed amount and around January 18, 2018 Debswana paid the amount of P136,640 to Infotrac for the investigation it carried out. On or about February 21, 2018 Infotrac submitted the report for which it was contracted. Following delivery of the investigation report, Infotrac’s contract with Debswana was discharged. Further the court papers revealed that Infotrac alleged that during the execution of the mentioned consultancy service, around January 6, 2018 Debswana entered into an oral agreement with the spying company for an amendment of the scope of works to include work related to the appointment of the new managing director of Debswana notwithstanding that the initial consultancy contract had been concluded. Infotrac alleged that the revised scope of work was to ensure that Milton succeeded Balisi Bonyongo to the position of Debswana’s MD with further instructions among others that they keep Board members abreast of the fabricated tip off. But Debswana, in its plea, denied liability contending that as at January 6, 2018 the late Milton was not its MD and further that any oral agreement alleged to have been entered into on behalf of the company by persons alleged was not authorised and therefore the services mentioned were not contracted by Debswana. It further contended that in the event consultancy services were undertaken, they were not rendered to them but rather personally to Milton and the alleged others.