Africa-Press – Botswana. President Mokgweetsi Masisi’s sister Boitumelo Mmutle-Phadi will take the stand and plead in a case in which her nephew took her to court over a Water Utilities corporation (WUC) tender worth more than P540 million.
This is after Gaborone High Court Judge, Justice Michael Leburu threw out an exception application brought by Mmutle and others. An exception, in legal terms, is when a party raises an objection on the grounds that the summons is embarrassing, vague or lack necessary averments to disclose a cause of action.
Mmutle and among them a Chinese contractor Huashi Li, G&M Buidling Services and Kelebogile Monnaatshipi had asked the Court to throw out an application brought by Joseph Pilane seeking among others compensation for having been elbowed out of G&M Building Services on the basis that the President’s nephew’s application would not sustain a cause.
Monnaatshipi (2nd respondent) and Mmutle through her company, Tswelakhumo Ventures (3rd respondent) had submitted that no case has been made out against them.
“They have argued that they have no way of knowing how they are alleged to have taken over the plaintiff’s shares in the first defendant and further that there is no basis of imputing unlawfulness to them and how they are expected to answer such averments,” Leburu said in his judgement.
In his pleadings, Pilane averred that he was a shareholder in G&M Building Services (1st defendant) and “produced an extract from the Companies and Intellectual Property Authority, evincing his 40% shareholding in G&M Building Services (Pty) Ltd, the 1st defendant.”
Pilane argued that G&M Building Services unlawfully dealt with the plaintiff’s shares by ultimately transferring part thereof to 2nd and another portion to the 3rd defendant. He further argued that Li (the 4th defendant) compelled him to a sign a draft statement indicating his resignation as a director and shareholder of G&M Building Services. He argued that the Monnaatshipi unlawfully took over 20% of his shares as did Mmutle.
Justice Leburu found that: “From a studious interrogation of the amended declaration, I find that the plaintiff (Pilane) has pleaded his cause of action as against 2nd and 3rd defendant with the necessary clarity and conciseness, such that the 2nd and 3rd defendants can plead thereto.”
He added that: “As to how such an unlawful act was effected is a matter of evidence, to be adduced during the trial.”
Mmutle and others, “with regard to the damages claimed, have submitted that the plaintiff or any other shareholder, is not entitled to compensation on a share of the profits of a company arising from execution of a tender project.”
They argued that for compensation to be ordered, such an only be ordered against the company or a director for loss sustained as a result of being omitted from the share register.
“A perusal of the amended declaration clearly shows that the plaintiff’s claim is not based on section 87 of the companies Act. He is also not suing as a shareholder or a director. It is purely a claim for damages arising out of the alleged deprivation and taking of his shares held with the 2st defendants, which he avers was unlawful,” said Leburu.
He also found that: “The exception as raised by the defendants, in my view, is an attempt and stratagem by the excipients to pleaded a case for the plaintiff, which is impermissible.”
The damages as pleaded, have been sufficiently spelt out such that they are able to plead thereto. Whether the claim for damages succeeds, such a decision will ultimately be made at the end of the trial,” said Leburu.
He concluded that “In my ruling, the plaintiff’s amended declaration contains all the necessary averments to sustain the cause of action for damages.”
Pilane revealed that he entitled to over P17 million of the P549.6 million water tender. G & Building Services’ 40% share of the said profit would be P43, 975,972.36. Therefore Pilane argued in court papers, his share in G&M Building Services profit of P43.9 million (which would be the amount owed to their company from the 40 to 60% joint venture) is P17.5 million.
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