The Court of Appeal has lifted orders that froze project funds and stalled the Modipane-Mabalane Road after finding serious procedural and disclosure failures.
GAZETTE REPORTER
The Court of Appeal (CoA) has overturned interim orders that froze Pro-Serve Consulting Botswana’s project funds and halted work on the Modipane-Mabalane Road Project, finding that Tau Grading improperly invoked urgent ex parte proceedings, failed to disclose material facts fully and did not meet the strict requirements for an anti-dissipation interdict.
The CoA ruled that Tau Grading improperly obtained urgent interim orders against Pro-Serve Consulting Botswana, Absa Bank Botswana and Unik Construction Engineering through ex parte proceedings that denied the respondents an opportunity to be heard.
The judgment was delivered by Justice of Appeal Isaac Lesetedi, sitting with Court of Appeal President Tebogo Tau and Justice Cameron. It discharged the interim orders that had frozen the project funds and prevented work on the Modipane-Mabalane Road Project from continuing.
DISCLOSURE FAILURE
A central finding was that Tau Grading failed in its duty to make full and frank disclosure when seeking relief without notifying the other parties.
The court found that Tau Grading did not adequately disclose that its dispute with Pro-Serve had crystallised weeks earlier after the construction contract was terminated. It also failed to present fairly Pro-Serve’s position that payment obligations were governed by the contract’s “pay when paid” clause.
According to the judgment, Tau Grading also failed to explain that Pro-Serve had consistently maintained that Tau Grading was itself in breach of the agreement and had demanded that it vacate the construction site.
Justice Lesetedi stated that presenting the High Court with the complete background “may likely have influenced the court… against the grant of the order sought.”
NO DISSIPATION
The Court of Appeal further found that Tau Grading had failed to justify the extraordinary anti-dissipation interdict granted by the High Court.
The judges ruled that there was no evidence that Pro-Serve or Unik Construction was deliberately dissipating assets or acting to frustrate the enforcement of any future judgment.
Instead, the court found that Pro-Serve’s decision to engage another contractor appeared consistent with its stated position that it had lawfully terminated Tau Grading’s contract and needed to advance a delayed public infrastructure project.
The judgment also criticised Tau Grading for using the interim order to institute contempt proceedings and seek access to Pro-Serve’s bank records before the respondents had filed their answering papers.
Justice Lesetedi noted that Tau Grading had leveraged the order to place the appellants at an unfair disadvantage while litigation unfolded on multiple fronts.
ORDERS SET ASIDE
Having found procedural defects, insufficient disclosure and no basis for the anti-dissipation order, the appellate court set aside the High Court decision, released the frozen project funds and cleared the way for the road project to proceed.