Mmutle-Phadi, had asked the court to throw out the matter arguing that the nephew could not claim loss of damages as a shareholder because the company had not made profit.
On the contrary, the court said rather that the claim is purely for damages suffered as a result of the alleged unlawful taking and deprivation of his share held in the 1st defendant.
“The plaintiff further asserted that he is not claiming for loss of profit, nor is he suing as a shareholder,” said the Judge Michael Leburu. The case is between President’s family members being his sister, Boitumelo Mmutle-Phadi and nephew, Olebile Pilane, and their business associates.
The first citizen’s family members have been at war with each after Pilane accused his aunt and their Chinese business associate of pushing him out of the lucrative tender. This was after Pilane allegedly refused to sign off money to fund the Botswana Democratic Party (BDP). Yesterday, High court judge Michael Leburu dismissed the application of exception by the President’s sister through her company and their Chinese associate, Huashi Li. An exception, in legal terms, is when a party raises an objection on grounds that the summons is embarrassing, vague or lacks necessary averments to disclose a cause of action. Justice Leburu said he believes Pilane has clearly laid out his claim thus enabling that the defendants can take plea.
Leburu agreed with Pilane that the latter is not suing in his capacity as a director or shareholder, but instead he is suing for damages. “From a studious interrogation of the amended declaration, I find that the plaintiff has pleaded his cause of action, as against the 2nd (Kelebogile Monnatshipi) and 3rd defendant) Phadi-Mmutle through her company Tswela Khumo Ventures PTY LTD) with the necessary clarity and conciseness, such that the 2nd and 3rd defendants can plead thereto.
As to how such unlawful act was effected is a matter of evidence, to be adduced during the trial,” the judge ruled. Leburu explained that the defendants will have an opportunity to clear their case during trial. “The defendants have argued that a claim for damages for loss of profit on an ongoing project is not sustainable at law. I reiterate that the plaintiff is suing for special damages arising out of his alleged deprivation and taking of his shares held with 1st defendant (G&M Building Services). Put differently, a cause of action has already matured as a result of the alleged unlawful ouster. Once a cause of action has accrued, as in case, then a claim may be brought against such a defendant,” the judge ruled.
In the end, the application by President’s sister was dismissed and the court ruled that the defendants should take plea and that initial case management conference should be set for June 26. Background The family war emanates from the half-a-billion pula water tender awarded to Mmutle-Phadi and nephew Pilane through their shared company, G&M Building Services (Proprietary) Limited (G&M), listed as the first defendant in the court papers. The President’s nephew feels he was elbowed out fraudulently from G&M soon after the P549.6 million tender was awarded and now he is coming out with guns blazing at his aunt and other business associates. Pilane says he was pushed out in what he perceives as an attempt to defraud him of his share. Turning to what he is entitled to, Pilane revealed that he deserves of over P17 million of the P549.6 million water tender. “The first defendants’ 40% share of the said profit would be P43, 975,972.36.
The plaintiff’s share in the first defendants’ profit of P43.9 million (which would be the amount owed to their company from the 40 to 60% joint venture) is P17.5 million,” Pilane argued. In court papers, Pilane also exposed how through the same company he was instructed to pay the BDP about five percent of the money from the government tender. He said after refusing to give the BDP some of his tender money, his aunt threatened him. Close sources have told Mmegi that some powerful forces are fighting for the case to be withdrawn as it has the potential to expose dirty dealings of high-ranking people in the country.
