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M500 million GVG tender case struck off the roll

Lesotho's widely read newspaper, published every Thursday and distributed throughout the country and in some parts of South Africa.

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Mohalenyane Phakela

THE Lesotho Communications Authority (LCA)’s application to nullify the controversial M500 million tender to Global Voice Group (GVG) South Africa for the supply of a Compliance Monitoring and Revenue Assurance system has been struck off the roll of the Commercial Division of the High Court.

Judge Moroke Mokhesi on Tuesday resolved to remove the application from the roll because it was not “court ready” as the LCA had not even bothered to serve GVG with the court papers to enable it to prepare its response.

Advocate Lintle Tuke had appeared on behalf of the LCA while one Adv K Selimo appeared on behalf of GVG. Adv Selimo argued that the matter should be struck off the roll.

“We are not aware what the purpose of today’s proceedings is because I understand that the applicants were to file the edictal citation which they have not. We are therefore seeking wasted costs for today,” Adv Selimo argued. An edictal citation is a summons published or deposited in a court or other public place summoning nonresident or absent defendants to court in civil or criminal cases.

Justice Mokhesi then granted Adv Selimo’s application.

“The matter is removed from the roll and the respondent (GVG) is awarded today’s wasted costs,” Justice Mokhesi ruled.

Apparently, GVG, who had not been served with court papers, only became aware of the LCA application after reading about in the Lesotho Times a fortnight ago.

This newspaper has established that following the publication of the story about the application, GVG’s lawyers, SM Inc of Pretoria, wrote to LCA’s lawyers, Rasekoai, Rampai and Lebakeng Attorneys, over the matter.

“We have come across an article in the Lesotho Times of 6-12 October 2022 headlined:  Govt seeks to nullify controversial M500 million GVG tender,” one Sivuyile Maqungo writes on behalf of SM Inc.

“In the said article, it is stated that there is a case to be heard on 18 October 2022…Has your client instituted any legal action against our client as suggested in the aforesaid news article? Has the matter been set for the 18th October as stated in the aforesaid news article? If yes, we require the proof of service on our client and a copy of the High Court application referred to.

“Be advised that it is our instructions that a dispute in terms of the (2020 LCA-GVG) agreement must be resolved by way of arbitration as per the arbitration clause. As such the High Court of Lesotho has no jurisdiction to adjudicate any dispute arising from the agreement between GVG and LCA,” Maqungo further states in his 12 October letter.

The LCA had two weeks ago joined forces with former Communications, Science and Technology minister, Samuel Rapapa, to file a High Court application to nullify the tender to GVG.

The Compliance Monitoring and Revenue Assurance system supplied by GVG would enable the LCA to actively spy on citizens’ private communications on their mobile phones. It would also enable the LCA to monitor citizens’ financial transactions conducted through their mobile phones.

The applicants had argued that the system would enable the LCA to venture into a realm of spying and surveillance “which would be more appropriate to the security and intelligence agencies”.

Former LCA CEO, ‘Mamarame Matela, who was at the helm of the authority when the tender was awarded in 2020, has previously argued that Lesotho needs the compliance system to combat what she described as costly illegal transactions that are being done by unscrupulous people using their mobile phones.

However, the LCA now argues that the tender was unprocedurally awarded and if implemented, the GVG system would allow the LCA to conduct illegal snooping operations on citizens.

The LCA argues that the tender was improperly and corruptly awarded to GVG at the instigation of Ms Matela.

The authority argues that in her spirited bid to ensure that the tender would be awarded to GVG, Ms Matela contravened several legal and corporate governance procedures. Among other things, Ms Matela is accused of forcing her way into the LCA’s tender evaluation committee. This is described as a highly irregular move as the same committee would have had to make its recommendations to her about which bidder to award the tender to. She is also accused of jumping the gun and writing to GVG to inform them of their “successful bid” even before the matter had been taken to the LCA board for approval.

However, GVG CEO, James Claude, insists that the tender award to his company was above board. He argues that the system is necessary to protect mobile communications subscribers “by fighting frauds that affect them and ensuring that telecommunications services comply with regulations that were established in the subscribers’ best interests”.

He also argues that the Lesotho High Court has no jurisdiction over any disputes arising from the tender because the two parties had agreed to take such disputes to an international arbitrator. (See Big Interview on Page 14).

It remains to be seen whether the LCA to refile the case in the High Court and serve GVG.