BMC’s P14m claim falls flat in court
Spira Tlhankane | Wednesday September 2, 2026 06:00
BMC told the court that the payments arose from an oral agreement concluded between the parties in January 2016. In a recent ruling, Justice Dr Zein Kebonang refused BMC’s application for summary judgment over its claim for P14,069,875.04, ruling that the commission had failed to properly establish the cause of action on which its claim rested. The ruling exposes a fundamental problem in BMC’s case, as the commission could not settle on what the millions paid to Walgreen actually were.
In its application, BMC described the payments at different points as 'prepayments', 'upfront payments', and loans.
“Either the amounts were prepayments or loans. They could not be both,” highlighted Kebonang, who emphasised that those positions could not stand together.
The dispute dates back to 2016, when BMC made a series of payments to Walgreen between January and August, totalling P14 million. BMC told the court that the payments arose from an oral agreement concluded between the parties in January 2016. But the judge found that the commission had failed to spell out the material terms of that agreement, including when the money was supposed to be repaid.
“The terms of the oral agreement have not been stated nor pleaded.”
Kebonang said without an agreed repayment date or specified time limit, Walgreen could not simply be said to have breached a loan agreement or fallen into mora legal default.
“In the absence of agreed dates for repayment or a specified time limit, the defendant could then not have been in breach of any loan agreement or in mora.”
The court also rejected any assumption that the parties intended time to be critical to the agreement.
“Unless stipulated, there is never a presumption in commercial contracts that time is of the essence,” he noted.
Perhaps more damaging to BMC’s case was the judge’s observation that, if the payments were indeed made under an oral agreement concluded in January 2016, the claim had potentially prescribed long before the 2023 proceedings were launched.
“It could also not have been lost to the plaintiff that if the payments made to the defendant were pursuant to an oral contract concluded in January 2016, that its claim had then prescribed by the time it instituted these proceedings in 2023,” Kebonang said.
The judge stressed that summary judgment is not simply about whether a defendant has a genuine defence, but instead, the starting point is whether the plaintiff itself has presented a properly constituted case capable of justifying the extraordinary procedure.
“The granting of a summary judgment application does not start from nor is it dependent on whether the defendant has a bona fide defence to the claim. Rather, it starts from whether the plaintiff has made a case for the granting of summary judgment,” Kebonang pointed out.
“Ex facie the Plaintiff's Declaration and the Verifying Affidavit, the Plaintiff’s Cause of Action is incomplete and objectionable and as such the application for Summary Judgment cannot succeed.”
The judge went even further, saying there was no need to examine Walgreen’s defence because BMC’s own application had already failed the threshold test.
“These are simply irrelevant whereas in the present case, a plaintiff has failed to disclose and verify a complete cause of action.”
The result was a clear defeat for BMC as summary judgment was refused, with costs awarded in favour of Walgreen Investments.
The ruling, delivered in open court in Gaborone on August 21, 2026, is a serious setback to BMC’s attempt to secure judgment without proceeding through a full trial.