Court sends BOTUSAFE, Gov�t for arbitration

Innocent Selatlhwa | Friday January 20, 2017 14:55

 

He said reasons will be given out at a later date where finalisation of the dispute between government and BOTUSAFE Investment (Pty) Ltd in relation to debt collection on the former’s behalf from civil servants to micro-lenders is still pending.  

“The two parties should find an arbitrator to deal with the matter, if there is no agreement on the arbitrator within 14 days, any party can approach the court to appoint an arbitrator, the respondents will bear the costs,” he said.

BOTUSAFE, a company owned by Botswana Public Employees Union (BOPEU), Botswana Teachers Union (BTU) and Botswana Sectors of Educators Trade Union (BOSETU), made the urgent application to restrain government from going through with the tender process until the parties had resolved their disputes in terms of their 2006 Memorandum of Agreement (MoA).

On Monday, Motswagole made final the order stopping government from proceeding with tender number FDP/TC/2/1/16-21 for provision of single central registry services pending final determination of dispute as provided in terms of clause 18 of the MoA signed by the parties on or about April 18, 2006.

BOTUSAFE attorney, Mboki Chilisa said government was in breach of such agreement. He told the court that as per the agreement, there are seven grounds upon which the government could terminate the agreement; “A cession of obligations by BOTUSAFE to another entity; failure, without sufficient cause in the opinion of Ministry of Finance and Economic Development to redistribute the deductions received within 24 hours of receipt; a resolution passed to wind-up BOTUSAFE; a petition presented for the winding of BOTUSAFE; if as a result of majeure BOTUSAFE is unable to perform material portion of the services; if BOTUSAFE commits material breach of the terms of the agreement which is incapable of remedy; if the applicant commits material breach which is capable of remedy but fails to initiate a remedy of the breach within seven days of receipt of notice of the breach from the government.”

Chilisa argued that it is contention by the government that mutual understanding to the effect that the services being provided under the agreement would end in 2016. He argued that the contention is not supported by the documentation before the court. He also argued that the agreement states that no variation or cancellation shall be in writing and signed by both parties.

“The business of the applicant will fold overnight if another entity is constituted as the central registry. This is because it will lose its only source of income,” Chilisa argued.

The respondents’ attorney, Pulane Kgoadi argued that BOTUSAFE did not have a contractual right to interdict or restrain the government from floating a tender for the provision of a single registry.

”The company BOTUSAFE has further known that the government has an intention to terminate services currently provided by them as well as other companies operating on the current system,” she stated.

Kgoadi said BOTUSAFE will not suffer irreparable harm in the floating of the tender. “The tender is open to everyone who wishes to participate in the single registry. The applicants themselves in fact, having enjoyed a monopoly to some extent in the current system actually have a better chance of being successful in the bid,” she said.