Victory for Mosothoane

Victory for Mosothoane

Leisa Leisanyane

MASERU – THE path has been paved for Leonia Mosothoane, a director of Smally Trading Company (Pty) Ltd, to sue the police for damages after the ministry awarded a tender to supply police uniforms through “an unlawful selective tendering process.

This is after Mosothoane won her case in the Court of Appeal last Friday.

Smally Trading Company had tendered for the supply of uniforms to the police but the Ministry of Police under Monyane Moleleki unilaterally cancelled the tender.

The ministry opted for a selective tendering process and awarded the contract to Cubana Shells Holdings and Naledi Outdoor Advertising.

The uniform tender was worth M7 million.

Mosothoane rushed to the Commercial Court for redress but Justice Lisebo Chaka-Makhooane dismissed her application saying she did not have jurisdiction to hear the case in terms of the Public Procurement Regulations 2007.

Justice Chaka-Makhooane ruled that Mosothoane should have exhausted the local remedies first before approaching her court.

Mosothoane appealed against the ruling, insisting that the court had jurisdiction over the case.

Last Friday, the Court of Appeal ruled in her favour.

Mosothoane had said Cubana Shells Holdings was not legally registered and Naledi Outdoor Advertising did not have the experience in textile as required by the police’s tender documents.

She wanted a High Court order interdicting the police and the Ministry of Police and Public Safety from releasing monies to Cubana Shells Holdings and Naledi Outdoor Advertising.

She claimed that Cubana Shells Holdings was owned by one Lekhotla Matšaba whom she alleged had political links with the ruling Democratic Congress (DC) party.

She wanted the selective awarding of the tender declared null and void “for non-compliance with the Public Procurement Act”.

She also wanted the police to reinstate the tender to the submission stage and the Registrar of Companies to issue a report explaining the status of Cubana Shells Holdings.

She complained that Cubana was “not fully registered and (its registration) is still pending up to now”.

Mosothoane claimed that after failing to register Cubana Shells as a sole trader Matšaba tried to register Cubana Shells Holdings on April 5 but did not complete the process.

She alleged that the tender was awarded to an unregistered entity.

She said she discovered that Naleli Outdoor Advertising was registered in 2013.

Mosothoane said she discovered that Naledi Outdoor Advertising had nothing to do with protective clothing and textiles.

Instead she found out that a day before getting the contract Naleli Outdoor Advertising had amended its main objectives to include textile clothing and footwear.

Naleli Outdoor Advertising had neither the performance appraisal nor the samples, Mosothoane argued.

On Friday, Court of Appeal judge Justice Ian Farlam heard that while Mosothoane was fighting a legal battle, “the uniforms which were the subject of the two tender processes…had been supplied and paid for with the result that there was no existing or live controversy between the parties”.

The respondents’ lawyer, Advocate Salemane Phafane had argued that the appeal was “academic and moot”.

However, her lawyer Advocate Letuka Molati submitted that it was not so because the tender had been awarded unlawfully.

Molati argued that “the illegality of the withdrawal of the public tender and the institution of the selective process were matters of controversy between the parties”.

Phafane argued that those issues could be raised in Mosothoane’s action for damages but Justice Farlam said “this submission amounted to a concession that there were still matters in actual controversy between the parties”.

“In my view, this concession was fatal to the contention that the appeal was moot,” Justice Farlam said.

Justice Farlam said if the court can only be approached after the exhaustion of the internal complaints procedure the contract complained of may well have been performed, particularly where a selective process is followed.

He said the result will be the ministry’s liability to pay damages to the complainant if the court rules in her favour, despite the fact that it has already received and paid for the goods covered by the tender.

Mosothoane’s appeal was allowed with costs.

Meanwhile, at a press conference in Maseru yesterday, the Ministry of Police told journalists that Mosothoane had not won a corruption case pertaining to the uniform tender.

The Deputy Principal Secretary, Ezekiel Senti, said the case that the Court of Appeal had decided was only on the preliminary matter of jurisdiction, not that they had been found guilty of issuing a tender through corrupt means.

Senti said the case on the selective tendering and the alleged unlawfulness has not been heard.

He said it will only be heard if Mosothoane still wishes to continue with it.

Senti said should that happen, “the ministry is more than willing to defend itself”.

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