This is after district council failed to defend a defamatory lawsuit filed by Estate Construction and its proprietor Kegone Sebina. The taxpayer will each pay P250,000 to both plaintiffs in the case against KDC and Kgari. According to Justice Tshepo Motswagole's recent order, KDC and Kgari failed to comply with the case management order issued on April 2024 and/or participate in the case management conference without any good cause.
"An interlocutory judgment for damages for defamation in respect of claims A and B is thereby entered in favour of the plaintiffs as against the defendants and the quantum of damages to be assessed by the Registrar," Justice Motswagole's order read.
The defendants have also been ordered to immediately issue an apology, approved by the plaintiffs and published in any weekly newspaper circulating nationwide. The defendants will also pay costs of suit.
The issue started on April 14, 2021, when Kgari in his capacity as the Council Secretary of the KDC deposed to an affidavit in a suit in which Estate Construction was the plaintiff and KDC was the defendant.
In the said affidavit, Kgari made the following statement: "I wish to however state that since the commencement of this project plaintiff in collusion with the engineer made several over claims and has been overpaid".
The background of the case emanated from the contract that was awarded to Estate Construction to construct a bus terminal in Molepolole.
According to court papers on or around December 17, 2012, the parties herein entered into a written agreement in terms whereof the construction company had to construct a bus terminus and other associated works for the KDC in Molepolole for the sum of P115,631,231.71.
The said agreement incorporated FIDIC Conditions of Contract for Construction 1999 (Red Book).
In terms of sub-clause of the FIDIC Conditions of Contract, the KDC was to appoint and did appoint an engineer who was to supervise the execution of the project, issue payment certificates for the appellant to pay the respondent and be deemed to act for the appellant/defendant.
The respondent carried out its obligation in terms of the contract and the engineer issued interim payment certificates (IPC), which were honoured and paid by the appellant, except interim payment certificate (IC) number 20 which the council refused to pay, resulting in a legal suit in the High Court.
The papers cite that in the said civil suit, the council alleged, as its defence, collusion between the engineer and the contracted company as well as overclaims by the company resulting in overpayment in the sum of P13,817,689.01.
“The allegation of overpayments or inflated claims was based on the so-called audit report prepared by the appellant's employees and dated April 13, 2016. These allegations of collusion and overpayment or inflated claims were dismissed by both the High Court and the Court of Appeal. The last interim payment certificate, number 21, was issued by the engineer and paid by the council without a whimper. On or around October 7, 2020, the engineer issued certificate number 22, which is a Final Payment Certificate and the council refused to pay for it, again alleging collusion and overpayment, hence the suit and the appeal,” read the papers.
