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Mogae, Dada and Co lose first round

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  • Tycoons had wanted the court to throw out Mosienyane’s demands
  • Mosienyane is demanding over P15 million from the tycoons
  • Judge finds that the business tycoons have a case to answer

TEFO PHEAGE

High Court Judge Terrence Rannowane has thrown out an application by Smart Partnership Enterprises- a company owned by business tycoons, Satar Dada, former president Festus Mogae and diplomat-cum businessman Sam Mpuchane among other business tycoons that wanted the P15 million demand by Business Botswana boss, Lekwalo Mosienyane, thrown out of court.
The Smart Partnership Enterprise had applied for absolution to the court following a nerve-wrecking suit emanating from a contract they had with Mosienyane’s business company- Mosienyane & Partners International and JHI- a company Mosienyane was contracted to. According to legal proceedings, at the end of a plaintiff’s case, a defendant may apply for absolution, in which event the defendant or his counsel, on his behalf, may address the judge and the plaintiff or his counsel to ask for the dismissal of the case without hearing.
Mosienyane wants the tycoons to pay him P15 867 654.50 for the work done at pre-development stage if they no longer want to engage him. He further argues he brought life into their multimillion Pula Central Business District investment project which was hanging in the balance.
In their absolution application, Smart Partnership Enterprise said Mosienyane had not satisfactorily shown how he is party to a contract between them and JHI which he was contracted to.
“A plaintiff must make out some prima facie case in the sense that there is evidence relating to all the elements of the claim- to survive absolution because without such evidence no court could find for the plaintiff,” reads the partners’ application.
In their dismissed application, the partners had said that Mosienyane did not adduced any evidence on essential allegations he levelled against them to establish a claim, further saying that his claim was doomed from the outset.
Mosienyane however argued that he accepted the benefit bestowed upon by him by clause 4.1.1 between the partners and JHI.  By the accepting the benefit, Mosienyane says he was not in any way purporting to replace JHI and to perform the functions that were to be performed by JHI. Those benefits, he says, were provided for strictly by virtue of clause 4.1.1 between JHI and the partners.
According to the contract clause, JHI-Botswana “was to involve the services of architects and quantity surveyors who would provide their services on a risk basis for the six-month pre-development phase (i.e. no payment fees shall be made for the pre-development stage) on the understanding that the same architects (MPI) and quantity surveyors (Davis Langdon) would be appointed for the final development Phases of the project.”
The clause further provides that “Otherwise should SPE not appoint the same architects and quantity surveyors, being Mosienyane, for the final development stage, Smart Partnership would be obliged to  pay Mosienyane in full for all the services rendered which fees shall be in accordance with the standard professional tariffs as set out by  the Botswana  Institute of Development Professionals (BIDP). It was further agreed that in the event that BIDP does not provide for the relevant tariff the South African equivalent shall apply.”
Mosienyane in opposing the application said the clause was self- explanatory:  “There was a qualification to the non-payment of fees. This was only to be on the understanding that Mosienyane would be appointed for the final development phases of the project. Otherwise should Smart Partners not appoint the plaintiff, they would be obliged to pay them in full for the services rendered.”
He also noted in his submissions that the architectural services required by Smart Partners from him involved converting the land use which was then commercial/retail into mixed land use. “The exercise had been attempted by William Lee Engineers on behalf of Smart but had failed,” he stated.
Mosienyane further argued that he was tasked with the duty to vigorously motivate change of use from commercial /retail in order to include residential, recreational, tourist common facilities such as hotels, conference centre, restaurants and petrol stations among others things.
“Smart also envisaged that no less than 10 % of the site shall be reserved as recreational facilities including a park,” he revealed. They continue, that apart from this, Mosienyane was also tasked with the duty to research and report on the prospects of development, feasibility and viability of the extent to which the plot could be developed, taking into account the market and availability of funding. Mosienyane says he performed all these tasks in accordance with the agreement and should be paid.
Justice Rannowane at the conclusion of the arguments dismissed Smart Partnership Enterprises absolution application. Rannowane however said he would advance his reasons for dismissing the tycoons in due course- meaning that the case would continue contrary to Smart Partners aspirations.

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