Nthane fights  ministry

Nthane fights ministry

MASERU – A MULTI-MILLION maloti dispute between the Lesotho Consolidated Civil Contractors (Pty) Ltd (LCCC) and the Ministry of Public Works continues to play out in court, with the ministry approaching the Court of Appeal in a bid to avoid paying the firm.
The ministry is refusing to pay over M39 million to LCCC for road construction. The company is also claiming more than M55.1 million, which it says “is still subject to evaluation and finalisation”.

The case goes back to 2012 but this month the ministry filed an application in the Court of Appeal against a High Court judgment in which Justice ’Maseforo Mahase ruled that the ministry should pay the firm.
Justice Mahase ordered the ministry to pay LCCC “for the piece of work done” and also found that the company had completed at least 80 percent of the work.

The work referred to is the construction of the Likalaneng to Thaba-Tseka Road, which the ministry cancelled after LCCC was involved in a dispute with an independent engineering company hired to supervise the project.

In papers filed in court, the ministry argues that “several disputes arose between the independent engineer under the contract, who was charged with the supervision of construction on the one hand and the (LCCC) as the contractor on the other”.
“The engineer’s instructions were not obeyed in some critical respects of the performance by LCCC which led to the engineer giving instructions to LCCC to stop certain operations, but LCCC did not take heed,” court papers read.

The ministry argues that the engineer had instructed that the LCCC stopped the construction of works to the Mantšonyane Bridge central pier and to stop asphalt surfacing works at an area identified as KM 31-40 “but these were all ignored by the contractor”.
The LCCC then rushed to the High Court where it obtained an interim order and “proceeded to construct the road unsupervised contrary to the terms of the contract” according to the ministry.

It says the company continued to construct the road “despite the clear indications by the (ministry) that the contractor should not do so”.
“At the heart of this appeal is the fact that LCCC stubbornly went ahead to construct the road despite cancellation and without supervision as required by the contract,” the court papers read.

The ministry, imploring the Court of Appeal to condone their late filing of appeal, says by the time the High Court delivered judgment in November 2013, the company had already completed construction.
“On the face of it, the appeal appeared moot because the LCCC would still have an opportunity to insist on payment based on the contract,” the ministry says.

The ministry says it sought an opinion from its legal counsel, one Advocate Motsieloa, who advised that an appeal against Justice Mahase’s judgment was unlikely to succeed.

The ministry wrote to the Attorney General, then Advocate Tšokolo Makhethe, and subsequently LCCC adopted “a conciliatory tone proposing that the parties could sit down, evaluate where they stand and finalise the matter amicably”.
That was in November 2013.

However, LCCC wrote another letter in which it reiterated its claim to payment based on the judgment of Justice Mahase in January 2014.
The ministry responded to the letter stating that “the judgment of the High Court has gone beyond what was prayed for in the notice of motion, by ordering payment, which was never part of your case”.

“Unless you abandon this part of the judgment within 3 days of this letter we shall have to instruct our lawyers to note an appeal to the Court of Appeal,” the ministry’s then principal secretary, Lebohang Phooko, wrote.

A separate lawyer advised the ministry after examining the pleadings, that “the judgment was not supported by what had been prayed for in the notice of motion”.
This second lawyer also said the ministry had good prospects of success.

The ministry says it had always wanted to appeal but could not do so outside of proper legal advice, “which was first sought from the Crown counsel but was not positive”.

The ministry argues that “on sound legal advice it is probable that the LCCC should not be entitled to any payment at all in respect of specifications of the work without authority, and work done in spite of the suspension issued by the supervising engineer in terms of the contract”.

The ministry also argues that the suspension “was never challenged in any proceedings in a court of law”.
The ministry says Justice Mahase erred in granting relief that had not been sought in the notice of motion.
LCCC on the other hand, in papers filed in court, argues that “the judgment underscores the point that when LCCC was served with a notice of expulsion LCCC had already completed 80% of the works”.

“This is a fact which cannot be denied,” the company argues.
“We may differ on how the 80% completion was achieved but the undeniable fact is that only 20% remained to be completed,” the company argues.
“The point we are making is that despite our differences, performance is there for everyone to see and the question is, is the road worse or better off?”
“The road is better off due to our performance.”

Staff Reporter


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