Phakalane sues WUC for P60 million

BAME PIET
Staff Writer | Friday February 4, 2011 00:00

 

Phakalane Golf Estates is demanding approximately P60 million, as accrued interest, for compensation of construction of a water tower that has been delayed for the past 20 years.

Senior employees joined the corporation, pushed the settlement under the carpet and left the corporation still having not made a decision to pay what was initially a mere P4.5million in compensation to Phakalane Golf Estates.

According to the managing director of Phakalane Golf Estates, Lesang Magang, it all started in 1991 when they reached an agreement with WUC that they (Phakalane) should build a water tower or reservoir to supply residents of the township north of Gaborone.

Then Phakalane Golf Estates built the tower on their own land to the tune of P4.2 million that WUC was to compensate once the project was completed. The piece of land cost P300 000 and all were to be compensated for. The project was handed over to WUC in 1993.

However, for many years that followed, WUC dragged its feet in paying the compensation until Phakalane sought High Court intervention in June 1997. But the court was not very helpful and the matter dragged before it for another 14 years until the intervention of the Court of Appeal early this year.

The court record shows that at some point the matter was listed for dismissal for want of prosecution in March 1999 and March 2001 but was not dismissed.

Five months later, in August 2001 the PGE amended the particulars of claim and later did the same in December of the same year. It further shows that trial dates were set for April 2002.

Pre-trial conferences were held in March and August 2003. Five years passed and there was no correspondence between the Phakalane Golf Estates and WUC, which prompted the corporation to file yet another application for dismissal on 12th September 2008, in terms of the rules of the High Court.

'On August 9, 2010 the learned judge dismissed the Phakalane claim for want of prosecution under Order 23,' the record says. Phakalane appealed the dismissal to the Court of Appeal on grounds that the 2008 court ruling on the issue of prescription did not apply in their case.

Justice Nick McNally, Dr Seth Twum and Lord Abernathy, unanimously allowed the appeal to go ahead and ordered that the matter should go back to the High Court, which must call the parties to a meeting to agree on how to finalise it. He commended the introduction of Judicial Case Management System in May 2008 saying it came to the rescue of Phakalane.

'The Judicial Case Management System may be regarded as something of a triumph for the judiciary of Botswana,' McNally said. 

The Court of Appeal found that the 2008 Rules have been reissued, with significant amendments, during the January 2011, causing confusions on interpretation of some aspects of the rules.

'The interim arrangement to cover existing causes have been deleted, presumably because that is now past history. However, for the purposes of the present matter, we must be guided by the provisions of 2008 Rules.Neither the parties nor the Court were aware of new Rules when the matter was heard on January 2011,' he said.He said that by the time the WUC attorney made the application for dismissal on September 12, 2008 the primary responsibility for the progress of the cause had shifted from the shoulders of Phakalane's attorney to the shoulders of the justice Stephen Gaongalelwe.

'In anticipation of the commencement of the new Rules no doubt, the case had been allocated to a judge on or before May 8, 2008,' he said. The appeal judge added that it was wrong for the registrar to list the case for dismissal and for the judge to subsequently dismiss it.

He said this was an existing case and the registrar should have acted in terms of order 42 (1) and allocated the case to a judge forthwith to schedule a case management conference with the parties.

'In listing the case for dismissal, he adopted the wrong procedure,' McNally said.

The Court of Appeal found that WUC has not been prejudiced by the delay of the case and continues to occupy property of Phakalane Golf Estates free of charge, at the disadvantage of the latter company.

Meanwhile, Magang said that the tower is listed in the WUC documents as one of its assets but the corporation refuses to pay for its construction and the piece of land it is built on. Though he would not reveal the figure, the company also wants to claim for business opportunity lost had the tower not been built on that piece of land. 'We could have built houses and collected rentals for the past 15 years.

Even as we speak right now I collect rental from Orange for the adverts they have erected on the tower because WUC has no manpower to do that,' he said. He added that WUC has made a huge profit from supplying water to Phakalane residents and factories, yet it is dragging its feet on payment to Phakalane Golf Estates.