State refuses liability against Matsheka
Mpho Mokwape | Monday November 27, 2023 06:00
The Attorney General, the Directorate of Intelligence and Security (DIS) Director General and the Commissioner of Police say Fiducia Services has no cause of action against them and that any grievances for the company should be addressed to relevant people or organisation.
“Anything to do with the company has nothing to do with us. We respectfully submit that Matsheka has no cause of action against us for any grievances by Fiducia Services in relation to its participation in competitive bidding,” pointed out the State in a general response to the suit filed by the Lobatse legislator.
In this case, the State attorney of record, Kgotso Botlhole was responding the former Finance minister Matsheka’s claim that his company allegedly suffered P8, 560, 800 loss when he was arrested, detained and allegedly publicly humiliated by the DIS.
Matsheka claimed that his company, in which he is a shareholder, was pursuing numerous contracts at the time he was arrested and as such his company suffered losses as most businesses stopped negotiations with him and pulled out.
The MP, who believes that the State has wronged him and has the right to sue in his claim, says as a result of the wrongful and unlawful acts of the DIS officers, police officers and support staff as alleged, he suffered loss of income in the stated sum.
However, the State has a different opinion about the claim saying Matsheka is suing in his own personal capacity and that he has not cited his company Fiducia in the proceedings.
The State explained that Fiducia Services is a separate legal personality from Matsheka, has capacity to sue or be sued in its own name and that any cause of action premised on a qualified bid lies with the procuring entity.
“It is submitted that Matsheka’s claim against us arising from or linked to the alleged damages or loss suffered by the company or to the extent that it is not a party, his claim discloses no cause of action against us,” said the State.
The defendants also explained that it was a settled principle in procurement law that where a bidder believes that its bid was not properly disqualified, its cause of action if any, lies against the procuring entity particularly where “it had reasonable cause to believe that it had presented an acceptable bid” as alleged by the plaintiff'.
They (defendants) stated that it appeared that Fiducia participated in a competitive bidding process where its bid was not successful as it is common in public or private procurement that there is only one awarded bidder.
“It is important that if Fiducia has any grievances with the procurement process, it should ventilate same with the procuring entities. We immediately foreshadow elementary but fundamental difficulties with plaintiff (Matsheka)’s claim. It is well settled that a company enjoys separate legal personality from its shareholders,” further contends the State.
On one of the claims where Matsheka is claiming for legal fees, the State says it seems like he is claiming for a matter that had already been decided before court.
According to the claim, Matsheka said on or about August 5, 2022, his wife, Veronica Matsheka to whom he is married in community of property, instituted an urgent application at the Lobatse High Court for his release.
Then, by the order of the High Court in the said proceedings, he was released from custody at or about 4:30pm on August 7, 2022 and he argued that he incurred liability in settlement of all legal fees associated with the prosecution of the said legal proceedings.
Matsheka filed that he incurred a loss in the sum of P600, 000 being the reasonable legal expenses in the prosecution of the said legal proceedings. Therefore, he said government is liable to reimburse him for the said loss.
However, the State does not agree with the said claim, saying that the matter was already decided by the court and that therefore, Matsheka cannot claim again. In requesting for further particulars on the matter, the State emphasised that it appeared Matsheka was suing for legal costs arising from a matter that has already been dealt with by the court.
“It appears the plaintiff is suing for legal costs arising from a matter where this court has already granted costs. In order to define with greater precision the issues which are to be tried or for avoidance of any doubt, the defendants have requested further and better particulars on whether the plaintiff is suing for costs that have been granted in a case which the court ordered for his release,” emphasised State.
The State’s contention is further that the special damages of P600, 000 in legal costs have not been laid out clearly making it difficult for them to lay out their defence properly.
The State responses emanates from Matsheka’s earlier P19, 160, 800 lawsuit in which he is seeking different claims as a result of his arrest by the DIS around August 2022.
He was arrested after he was alleged to have taken part in the missing of a seven-year-old boy, Tlotso Karema who would later be found dead, angering residents of his home town, Lobatse, in which Matsheka is a legislator.
The State responded by filing for a request for further particulars as they stated that some of the claims were not clearly laid out and therefore, difficult for them to defend properly.
Matsheka is represented by senior counsels Dick Bayford and Unoda Mack.