Gov’t denies defying P 1.5 bn project court order
Innocent Selatlhwa | Monday July 27, 2026 06:00
The State's position is contained in heads of argument filed before Justice Tapiwa Kganyago, who is expected to determine whether senior government officials deliberately disobeyed previous court orders arising from the long-running procurement dispute. The applicants are G4 Civils (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd, trading as Tawana Joint Venture (JV). The respondents are the Accounting Officers in the Ministry of Water and Human Settlement, Boikhutso Botlhole, Nchidzi Mmolawa and the Attorney General. Tawana JV has approached the High Court seeking an order declaring the respondents to be in contempt of court, arguing that government failed to implement previous judgments which cleared the way for the consortium to be awarded the contract after the Public Procurement Tribunal's decision was set aside.'However, the respondents insist there was no refusal to obey the courts. In their heads of argument, they submit that the ministry complied with the orders by issuing a Letter of Acceptance to Tawana JV on April 28, 2026. According to the respondents, the previous judgments required the ministry to proceed in accordance with Regulation 68(2) of the Public Procurement Regulations, a requirement they argue was fulfilled through the placement of the contract.
'The respondents complied with the order of court by placing the contract,' the State argues. Government submits that contempt of court is reserved for cases where there is deliberate and bad-faith disobedience of a court order. It argues that Tawana JV has failed to establish either element. Instead, the respondents say the ministry continued to deal with legitimate issues that arose after the contract had been placed. Among those issues, Government says, was the need to engage the Ministry of Finance regarding funding arrangements for the multi-billion pula project. The respondents further state that the Ministry also had to consider matters arising from allegations of corruption that had been referred to the Directorate on Corruption and Economic Crime (DCEC) by the Public Procurement Tribunal.
The State says such developments could not simply be ignored before implementation of a project of this magnitude. Government also points to a substantial increase in the estimated cost of the project.
The respondents state that by the time the contract was being implemented, the cost had reportedly escalated by approximately 40 percent compared to the original tender estimate. They argue that such a significant increase required consultation and careful consideration in the public interest. The respondents further contend that the contempt proceedings are procedurally defective.
They argue that Deputy Permanent Secretaries Boikhutso Botlhole and Nchidzi Mmolawa were never parties to the original litigation that resulted in the court orders relied upon by Tawana JV. As such, Government argues that, they cannot be held personally liable for contempt arising from proceedings in which they were not cited. The State also argues that the mandatory legal requirements governing contempt proceedings were not complied with. According to the heads of argument, the statutory notices required before contempt proceedings can be pursued were never personally served on the officials.Government says that omission alone is sufficient to dispose of the application.
The respondents have also addressed questions surrounding Botlhole's role in the procurement process. According to the court papers, Botlhole declared a potential conflict of interest on April 23, 2026 after disclosing that an immediate family member was associated with Geo Science Consultancy Services, a company that had previously undertaken the Environmental Impact Assessment for the project.The respondents say Botlhole immediately disclosed the potential conflict and thereafter recused herself from any further involvement in procurement decisions relating to the project. Government argues that this demonstrates transparency and adherence to good governance principles rather than misconduct.The respondents further rely on correspondence issued by Deputy Permanent Secretary Nchidzi Mmolawa on April 28, 2026 informing Tawana JV that the contract had been awarded.According to the State, that letter itself demonstrates compliance with the court order.
The respondents argue that Tawana JV cannot rely on the same letter as proof that the contract was placed while simultaneously alleging that Government ignored the court's directive. Government further submits that the applicants are attempting to use contempt proceedings to resolve what is essentially a disagreement over the implementation of the contract rather than proving deliberate defiance of a court order.'The applicants have failed to establish wilful and mala fide non-compliance,' the respondents submit.
Tawana JV had also filed a point of law challenging the Attorney General's authority to represent Botlhole and Mmolawa in their personal capacities, citing non-compliance with Section 6 of the State Proceedings Act. However, the State has hit back with a formal notice of opposition. The Attorney General argues that the joint venture’s objection is 'procedurally incompetent' because it was raised irregularly in their replying affidavit. The State asserts that the government has properly undertaken the defence of the public officers, and that the joint venture waived any right to object after taking several subsequent steps in the case without raising concerns.
The State therefore wants Justice Kganyago to dismiss the contempt application with costs.Tawana JV are represented by Jeremiah Tladi & Co while Joao Carlos Salbany represents the respondents.