Mosienyane sues friends for P15.8 m

SHARE   |   Monday, 04 December 2017   |   By Ditiro Motlhabane 
Mosienyane sues friends for P15.8 m

The Who's Who of business magnates in Gaborone will on Thursday start taking the witness box to give evidence when local tycoons clash in a bruising battle between friends-turned-foes and former business partners at Smart Partnership Enterprises. Former Business Botswana President Lokwalo Mosienyane is demanding payment of P15.8 million from Smart Partnership, an investment company owned by a group of local business tycoons, for the work he did on Lot 5439 at the Central Business District (CBD), Gaborone. Smart Partnership will start calling witnesses among them Sam Mpuchane, Kabelo Ebineng, Martin Mannathoko, Dennis Alexander, Seleka Mokama, Anjana Suresh and an architect Charles Cook to provide expert opinion to counter Mosienyane. The developments at the centre of the dispute are being rolled out on a piece of land to the northern side of the intersection where A12 Gaborone-Molepolole road connects Nelson Mandela highway in the city centre. The first office complex has just been completed on the site housing a hotel. Mosienyane's company Mosienyane & Partners International is suing for payment of architectural services provided in the pre-development stage of a mixed-use development for Lot 5439. Mosienyane & Partners were engaged as architects for the pre-development phase by project managers, JHI Property Services (Botswana) – a company Mosienyane also co-owns. Smart Partnership had on 12 October 2009 appointed JHI Property Services to engage the services of architects and quantity surveyors who would provide their services on a risk basis during the six months pre-development phase. Risk basis means that no payment of fees shall be made for the pre-development stage on the understanding that the same architects and quantity surveyors would be appointed for the final development phases of the project. Directors of Smart Partnership met in March 2012 where they confirmed recommendations to appoint Mosienyane & Partners International as architects and multi-national Quantity Surveyors Davis Langdon – a subsidiary of CCMI, for the final development phases. Sources close to the development said the relationship between some members of the syndicate (Smart) later soured leading to the two companies being dropped from the on-going final development, which is the centre of the current dispute. Consequently, Mosienyane & Partners is demanding full payment of P15 867 654.50 for work done during the pre-development stage.  Mosienyane argues that it was the intention of both JHI and Smart Partnership that, by Mosienyane &Partners International accepting the benefit of the contract, they would become party to the contract and be entitled to claim from Smart Partnership. Mosienyane &Partners did accept the benefit by accepting their involvement and rendering their services as envisaged by the contract, he argues. 

One of the Smart Partnership Directors, Martin Mannathoko, has deposed an affidavit, arguing that JHI violated an agreement they entered into by failing to compile a letter of appointment reflecting fully the terms of such an agreement for Mosienyane & Partners, for approval. Therefore, Mosienyane was never appointed in writing as per the agreement, he argues. But Mosienyane counters that Mannathoko is wrong because the section of the contract he refers to, which says appointment of architects should be in writing, was applicable if the project proceeded to the final development phase. Although Smart Partnership concedes that JHI involved Mosienyane & Partners as architects for an envisaged project as defined in their agreement and that the latter rendered some architectural services, they are adamant that they did not accept or implement his concepts and design in the final stages of the project. Smart Partnership also denies that JHI performed all its obligations in terms of their agreement and in particular failed to produce an acceptable tenant mix proposal. According to Mannathoko, Mosienyane & Partners did not perform all the work set out in the responsibility matrix of the agreement and for which it claims remuneration, citing failure to provide information on the environmental impact and statutory requirements of the project. As a result, Mannathoko submits that Mosienyane's concept and limited design was not economically viable and the initial project was abandoned, which later led to the appointment of different architects to undertake new concept and designs. For these reasons, among many others, Smart Partnership is refusing to pay Mosienyane the P15.8 million bill that he has slapped them with. 

Mosienyane opposes suggestions that he did not perform all the work and that his concept and designs were abandoned, saying in preparing design sketches he followed recommendations of a market surveyor who was engaged independently by Smart Partnership. He argues that the pre-development architectural designs were intended to inform the Quantity Surveyor in preparation of the cost plan, which is required at the preliminary stage by financial consultants to prepare documents for raising finance. The architectural design sketches at pre-development stage are used by the Development Consultant for marketing the proposed development, Mosienyane further argues.He said even if Smart Partnership did not use the sketches prepared by Mosienyane & Partners International, any designs prepared by another architect or advancement of the project to the final phases would benefit from the parameters set out by consultants at the pre-development phase. To buttress the point, Mosienyane explained that the sketches (pre-development designs) therefore are part of a set of documents intended to establish the feasibility and commercial viability of development on the specific piece of land, thus setting out the parameters of the project. Witnesses will start giving oral evidence at Gaborone High Court on Thursday. In March, Smart Partnership suffered a setback when Justice Terrence Rannowane dismissed their application for dissolution of the lawsuit and ordered that they have a case to answer to oppose the claim and prove that indeed they do not owe Mosienyane.