The Israeli arms company, Dignia Systems has given spy chief Peter Magosi eight days to fulfil his obligations in terms of the agreement between the company and the Directorate of Intelligence and Security (DIS).
Recently, Magosi wrote to Dignia Systems telling them that he was suspending the contract for the acquisition of security equipment and surveillance platform with associated training that was signed by his predecessor, Isaac Kgosi and the Israeli company.
Magosi wrote to Dignia Systems telling them that DIS cannot continue with the contract because the way it was entered into was irregular and did not conform to standard government procurement procedures.
Magosi’s bid to nullify a US$22.6 million (P241 million) deal with an Israeli arms firm, is in jeopardy as Dignia Systems lawyer Unoda Mack on Wednesday wrote to Magosi to say there is no clause in the agreement which empowers him to suspend the execution of the agreement and he has not referred to any.
“Accordingly, your purported suspension of its execution is invalid, unlawful and without basis in law,” Mack wrote. “It was the responsibility of the Government of Botswana represented by the Office of the President (OP) to “acquire all necessary procurement approvals prior to the signing of the agreement” as provided under clause 9.1.2 of the agreement.
“By signing the agreement and making the first payment, the Government of Botswana was acknowledging that all procurement procedures have been duly complied with;
“The legality of the agreement/contract between the parties has not been questioned by anyone or any institution and there are no investigations in relation thereto as you seem to suggest in your letter.”
The lawyer said in terms of Clause 28 of the agreement, the OP, on behalf of the Government of Botswana, specifically warranted that “it has the power, authority and legal power to sign and perform” the agreement and that the agreement “has been duly authorised and constitutes valid and binding obligations on it”.
“Accordingly, if there is any non-conformity with government procurement procedures, same cannot be raised by Magosi at this late stage against an innocent party in the position of Dignia Systems.
“The source of funding by government in furtherance of the contract, is a matter which client is not privy to, and is of no concern to it as it does not form part of the agreement. It was entirely a matter for the government to decide how and where to source funding for the project without reference to client, as is the case with any other government project.”
He continued: “The execution of the agreement cannot in any way amount to contempt of a Court order as there is none which declared the agreement illegal or interdicted its execution. In any event, you do not state how such contempt that can possibly occur”.
The Israelis insist on full performance of the agreement for the following reasons, amongst others: That the equipment
That the equipment ordered is security-related and can only be legally possessed by national security agents and no other person or entity; That the agreement between the parties (inclusive of the appendices) and the equipment constitute national security secrets and should not be paraded in the public domain;
That client was granted and issued with all the necessary licences by the Israeli Government for the performance of the agreement and exporting the related equipment and services. The equipment that is still to be delivered has been security cleared by the Israeli Government for use by Botswana Security Agents only;
That all the equipment that has been ordered in terms of the agreement has been manufactured at a high cost. Some of it has already been delivered and accepted by you, and some is on its way to Botswana for delivery;
That client is unable to reverse the transportation of the equipment which is already en route to Botswana. The balance of the equipment and services are ready for delivery and client faces high storage costs and penalties by the manufacturers and additional expenses resulting from inability to conduct training and provide other services as per the schedule defined in the agreement; That none delivery of the equipment will complicate matters and result in shipping companies and other agents charging astronomical storage and handling fees for the goods currently in their custody;
And that client has performed all of its obligations in terms of the agreement, save for training, such that the agreement is practically impossible to suspend, even if it was permissible to do so.
“In view of the above, you are duty bound to fully pay the balance due to client and accept delivery of the equipment and services and as such, client shall notify you of its arrival in Botswana.” Lastly he said: “This letter also serves as statutory notice in terms of the State Proceedings (Civil Action by or against Government or Public Officers) Act (cap 10:01) that should the dispute not be resolved in terms of the agreement client shall, at the expiry of the requisite notice period, approach the High Court for relief, including an order for specific performance and costs. By copy hereof the Attorney General is accordingly notified and informed”. DIS owes the Israelis the outstanding balance of P118 million owed for various military equipment, including weapons and drones supplied under the contract.