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Spedu Infrastructure Development Commences After Court Battle

A works contract for the design and build of the first phase infrastructure in Bolelanato and Senwelo Industrial Sites in Selebi-Phikwe will commence after the unsuccessful bidder lost a court battle.

The works contract entailed provision of detailed designs of infrastructure, construction of road works, storm water drains, water reticulation, sewer pump stations, power reticulation, street lighting and telecommunications.

The period of performance is estimated to be 15 months and 12 months defects notification period.

Around July 2019 SPEDU Limited floated this tender and Marcian Concepts (PTY) Ltd was declared a successful bidder on June 3, 2020 and accepted the offer. The losing bidder Lempehu Investments (PTY) Ltd approached the Gaborone High Court claiming urgency.

In his ruling Justice Godfrey Radijeng said on June 16, 2020 Lempehu sought the indulgence of the first respondent, chairperson of SPEDU Board Tender Committee that the tender would not commence pending mediation.

The mediator was appointed and the outcome of the process was that on July 13, 2020 the mediator issued a certificate of failure to settle.

Lempehu averred that on July 23, it began to draft a review application and the three respondents contended that the matter was not urgent and the applicant has not satisfied the requirements for the grant of an interdict.

“The respondents contend that the applicant has failed to set out the explicit circumstance, which render the matter urgent and further that the facts and/or reasons disclosed as to why the applicant cannot be afforded substantial redress at a hearing in due course do not fit the test of urgency as the loss of profits, business or damages not capable of being quantified are not a basis to suggest the absence of relief in the ordinary course,” Radijeng said.

The Judge further said the facts speak for themselves that the applicant elected a process of mediation whose outcome is subject to the agreement of the parties for it to be binding and did not pursue a course that would afford the applicant redress on urgent basis from the time of becoming aware of the reasons for the decision of SPEDU.

“The applicant was aware that the mediation process did not have the effect of interdicting the second respondent [SPEDU] from proceeding to award the contract. I take the view holistically that the matter is not urgent and that if it were urgent it is self-created urgency given the manner in which the applicant elected to proceed to persuade as it where, the second respondent to change its decision and the subsequent approach of the applicant following the notification of failure of settlement on July 13, 2020.”

He said a party who sought the indulgence of the Court on urgency must meet the two-prolonged requirements of Order 12 Rule 12 (2) of the Rules of the High Court. The applicant failed to meet both requirements in his assessment. 

“In the result that the respondents’ points in limine on lack of urgency succeeds. The application is unmeritorious, not urgent and must be dismissed with costs, and I so order. The application is dismissed for want of urgency with costs,” Radijeng ruled.

Lempehu was self-actor while attorney Tshiamo Rantao appeared for the SPEDU Board Tender Committee chairperson and SPEDU while attorney Mompati Sepego represented Marcian Concepts.




Flogging a dead horse

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