Legal battle over P1.5bn Ncojane water works escalates
Innocent Selatlhwa | Monday July 13, 2026 06:00
At the centre of the latest dispute is an application before the High Court’s Justice Tapiwa Kganyago in which Tawana Joint Venture accuses government officials of failing to comply with judgments of both the High Court and the Court of Appeal (CoA), which the consortium says effectively cleared the way for it to undertake the major water infrastructure project. The consortium, made up of G4 Civils (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd, has also raised a preliminary legal challenge over the role of the Attorney General in defending two senior officials cited personally in the contempt proceedings. The applicants argue that the Attorney General does not have authority to represent Deputy Permanent Secretary Boikhutso Botlhole and Deputy Permanent Secretary Nchidzi Mmolawa in their personal capacities because, according to them, the requirements of Section 6 of the State Proceedings (Civil Actions by or against Government or Public Officers) Act have not been met. The respondents cited in the contempt application are the Accounting Officer of the Ministry of Water and Human Settlement, Botlhole, Mmolawa and the Attorney General.
The dispute originates from the Ncojane Water Supply Works project, one of Botswana’s biggest planned water infrastructure developments aimed at improving water supply in the Charles Hill and Kgalagadi North Districts. The project has been embroiled in litigation after Tawana Joint Venture challenged the procurement process and disputed the decision that prevented it from securing the tender. The consortium eventually succeeded in its legal challenge, with the High Court issuing orders in its favour. The CoA later upheld the decision. Tawana Joint Venture argues that the effect of those judgments was that the government was required to proceed with awarding and placing the contract in its favour.
However, the consortium says that despite the court victories, the contract has not been concluded. According to documents filed before the High Court, Tawana argues that the government failed to comply with an order requiring the contract to be placed within 21 days in terms of Regulation 68(2) of the Public Procurement Regulations. Instead of finalising the contract, the applicants allege that the government attempted to reopen discussions and introduce further negotiations. A key point of dispute is a letter dated April 28, 2026, authored by Mmolawa. Tawana Joint Venture argues that although the letter purported to place the contract, it subjected the process to further negotiations and conditions, meaning that it did not amount to compliance with the court orders.
The applicants argue that the letter could not create a binding contractual relationship because acceptance of a tender subject to further conditions does not constitute final acceptance. They rely on legal authorities dealing with contract formation, arguing that a conditional acceptance amounts to a counter-offer rather than a concluded agreement. The consortium maintains that negotiations should have taken place before the tender was awarded and not after the courts had already determined the outcome of the procurement dispute. According to Tawana, once the High Court substituted the procurement decision and the CoA confirmed that position, there was no legal basis for government to restart negotiations. “The award has already been made,” the applicants argue in their heads of argument. The applicants further contend that allowing negotiations after a final court order would undermine the authority of judicial decisions by effectively converting a final award into a provisional arrangement. They argue that government officials were aware of the court orders and had the necessary documents required to conclude the contract but failed to do so.
Tawana says the conduct of the officials cannot be described as ordinary administrative delay. The consortium alleges that the officials knowingly failed to implement binding court orders and instead took steps that created the appearance of compliance without delivering the outcome required by the judgments. “The Respondents did not place the contract,” the applicants state. The contempt application seeks an order declaring the respondents to be in contempt of court and directing them to immediately comply with the earlier judgments. The applicants are also asking the court to impose sanctions if the respondents continue refusing to comply. In addition, Tawana Joint Venture is seeking personal costs orders against officials it alleges were responsible for the failure to comply.
The consortium argues that taxpayers should not bear the financial burden of litigation arising from what it describes as deliberate conduct by individual officials. The applicants rely on previous court decisions which recognise that public officials may face personal cost consequences where their conduct amounts to bad faith or deliberate disregard of court orders. However, before the High Court considers the merits of the contempt application, it will first have to deal with a preliminary legal objection raised by Tawana. In its notice to raise a point of law through their attorneys, Jeremiah Tladi & Co., the consortium argues that the Attorney General cannot represent Botlhole and Mmolawa personally in contempt proceedings.
The applicants argue that while the Attorney General may represent government departments and state officials acting in their official capacities, separate legal requirements apply when officials are cited personally. They contend that those requirements have not been met in this matter. As a result, Tawana argues that the answering affidavit filed on behalf of the respondents jointly cannot serve as a proper answer by Botlhole and Mmolawa in their personal capacities. The applicants say this means that the personal contempt allegations against the two officials remain unanswered on the court papers.
The Attorney General’s office and the other respondents oppose the contempt application. They were, however, unable to make it to court this week, and the matter was postponed to next week for a hearing.