Tau Grading denies Modipane road site abandonment
Staff Writer | Wednesday December 17, 2025 06:00
Tau Grading and Building Construction (applicant) has taken the following to court: Pro-Serve Consulting Botswana (first respondent), Absa Bank Botswana (second respondent), the Attorney General – representing the Ministry of Transport and Public Works (third respondent), and Unik Construction Engineering (fourth respondent). The Ministry of Transport has engaged Pro-Serve Botswana under the acclaimed Development Manager Model for the construction of a tarred/asphalt road and ancillary works between the villages of Modipane and Mabalane in the Kgatleng District.
According to the company to date, the first respondent cannot point to any plant, equipment, or labour which ought to have been on site but was not. It argues that a suspension of work (or tools down) does not mean that the applicant abandoned the site.
“The applicant asserts that it is in possession of the site and has suspended works pending payment, whilst the first respondent claims that the applicant demobilised from the site, thereby entitling the first respondent to cancel the agreement,” reads a replying affidavit deposed by Tau Grading Director Hugo Lemcke.
Lemcke was replying in order to address answers filed by Pro-Serve Consulting on November 19, 2025 (being points in limine, and an answering affidavit).
“Applicant's lien in respect of road construction and improvements on the site is a remedy which can only be secured by these proceedings. Aside from an Order of this Court protecting the sanctity of the lien and interdicting self-help by the first and fourth respondents, and the contamination, altering, or interfering with the applicant's right of possession of the site, there is no other way in law to ever revive the lien or obtain alternative redress of the same nature,” said Lemcke.
He avers that self-help cannot be undone if not prevented from the start. He stated that, regarding the anti-dissipation order sought, there is no other remedy available in law which can afford the applicant the same redress (now or ever) except for an anti-dissipation order.
“If payments due to the first respondent are not secured and frozen immediately, the applicant will have no assets available from which to execute its award,” said Lemcke.
He added that the first respondent has not alleged or shown that it has any immovable or other adequate security in Botswana.
Lemcke further said, “The first respondent suggests that a lien cannot exist in respect of a public road. The applicant does not seek to confirm a lien on a public road—the lien is in respect of improvements made by the applicant at its expense in developing the road.”
He argued that evidence of the applicant's developments, for which it is yet to be paid, will be contaminated by the first and fourth respondents unless the relief sought presently is granted.
“Strangely, the owner of the road, the third respondent, does not oppose this application. It is the non-owner who is attempting to defend rights which are not his.”
Pro-Serve Chief Operating Officer, Lunghile Mbhokota, stated in the court papers that on or around September 4, 2025, Pro-Serve wrote to Tau Grading, reminding it of the Contingency and that Pro-Serve was not in breach of the agreement whatsoever.
“The applicant was then warned that in light of the continued actions, the applicant’s demobilisation and suspension of works as addressed in earlier letters, the first respondent reserved the right to elect to cancel the agreement if the applicant did not remedy the breach as communicated previously,” he said.
He stated that since Tau Grading ignored all the warnings, it came as no surprise that on September 16, 2025, Pro-Serve issued a notice to terminate the agreement. The court will hand down its judgment on December 22, 2025.