WUC fights P24m demand in Masisi sister tender row
Innocent Selatlhwa | Monday August 10, 2026 06:00
The Corporation wants Lobatse High Court judge, Dr Ookeditse Maphakwane, to halt the case and send the parties to adjudication or arbitration under their P549.7 million contract. But, the contractor, through former Cabinet member and now project manager Aubrey Lesaso, maintains that the case concerns a fixed and certified debt, which WUC had no genuine defence against. It argues that the mere existence of an arbitration clause cannot automatically shut the High Court’s doors.
The battle involves a joint venture (JV) between Tianyuan Construction Group Company Limited and G&M Building Services (Pty) Ltd, a company owned by former president Mokgweetsi Masisi’s sister, Boitumelo Phadi-Mmutle. The JV was awarded the Goodhope District Water Supply Scheme Phase 2.2, Contract 2, for P549,699,654.79. Now the parties are back before Justice Maphakwane, fighting over money and the forum that should hear their dispute.
WUC asked the court to stay the main case under Section 6 of the Arbitration Act before filing its plea. The Corporation is the interlocutory applicant and the JV is the respondent. WUC senior manager responsible for legal affairs, Ajit Peter Williams, states in his founding affidavit that the parties freely chose the contractual dispute route and must be held to their agreement. “There is no reason whatsoever to bypass such clear contractual intentions,” Williams says. WUC argues the matter should go before a Dispute Avoidance and Adjudication Board and, if necessary, to arbitration. Where no board exists, either party may refer it directly to arbitration.Williams adds WUC is ready to participate. He argues that this would be faster than a High Court trial, which he says may only begin in 2029.according to WUC, the 2017 FIDIC Red Book provides a clear route for determining whether the contractor is entitled to P19.95 million in financing charges, when payment became due and whether it used the correct formula. The contractor pleaded that reliance on a dispute adjudication board, adjudication or arbitration clause did not render its case incompetent or deprive the High Court of jurisdiction to determine whether it was entitled to payment of a certified debt.
It argued that if WUC wanted the case stayed or struck out on the strength of the contract’s dispute-resolution provisions, it had to properly raise and prove that defence. “The mere existence of such a mechanism does not automatically defeat this action,” the JV pleaded. The contractor’s case was backed by Lesaso, who identified himself as the JV’s authorised representative and project manager. The former Minister said his work administering the contract, liaising with the engineer and submitting payment certificates gave him direct knowledge of the dispute. Lesaso said the engineer measured and evaluated Interim Payment Certificate 18 at about P57.3 million. At WUC’s request, he said, the certificate was split into IPC 18A of P24,146,052.20 and IPC 18B of P33,130,342.24 because the full amount exceeded the remaining approved contract balance.
According to Lesaso, IPC 18B was submitted to the engineer, measured, evaluated and certified. He maintained that the split did not reject the contractor’s entitlement or create a dispute over measurement, valuation, certification or WUC’s liability. The P24.1 million under IPC 18A was paid in December 2025. Lesaso said IPC 18B remained unpaid despite a written demand delivered by the JV’s attorneys on April 30, 2026. The declaration says IPC 18B was submitted around January 27, 2026 and became overdue on March 24 after the 56-day payment period expired. Lesaso described the P33.1 million as a fixed, ascertained and undisputed debt evidenced by a liquid document. “I confirm that the amount claimed, being the principal sum of BWP 33,130,342.24, together with the ancillary relief pleaded in the declaration, is due, owing and payable by the defendant to the plaintiff and that I am not aware of any bona fide defence available to the defendant in respect thereof,” he stated. The JV sought the principal, contractual financing charges and legal costs.
But the case took a sharp turn. WUC says the Ministry of Water and Sanitation paid the P33,130,342.24 principal. The payment did not buy peace as the JV returned with a demand for P19,950,332.29 in financing charges, P3,313,034.22 as a 10% collection commission and P1,033,638 in legal and professional costs. The contractor alleged that the two portions were paid a combined 736 days late and that FIDIC entitled it to financing charges at three percent above Botswana’s average short-term prime lending rate. WUC disputes both the contractor’s entitlement to the money and the calculations. At the centre of WUC’s application is a December 17, 2025 letter recording an agreement reached a day earlier.
It said P24.1 million would be paid immediately, while the P33.1 million would follow approval of additional funding. WUC argues that the contractor cannot agree to wait for additional funding and later charge the corporation for the same delay. “The respondent cannot, after agreeing that payment will be made after the request for additional funding has been approved, seek to charge the applicant financing charges for the delay,” Williams states. WUC has also picked holes in the contractor’s dates.
While the declaration says IPC 18B became overdue on March 24, 2026, the July 14 settlement demand calculates financing charges on both portions from March 28, 2025. It alleges that IPC 18A was paid 269 days late and IPC 18B was paid 467 days late. The corporation further turned the JV’s position from last year’s water lockout case against it. In a July 14, 2025 letter, the contractor described WUC’s threatened litigation as “an improper attempt to bypass FIDIC’s contractual mechanisms”. WUC says the statement shows that the JV knows disputes arising from the project should follow the contractual process. Last year WUC approached court after the contractor locked chambers supplying several villages.
Justice Maphakwane ordered them reopened and ruled that the lockout amounted to spoliation or unlawful self-help. The JV appealed. WUC now wants the same judge to stay the payment case and award it legal costs if the JV opposes the application.