Lekhetho Ntsukunyane
THE Ministry of Health has been sucked into a bitter row between two catering companies over a M1.6 million tender payment which is now before the Commercial Court.
Maseru-based businessman Isaac Josephs’s company Isaacs Food Suppliers made an application on Thursday to “interdict and restrain” the ministry from effecting payment of M1 603 412. 70 to Batloung Tsabi’s and Green House Joint Venture, pending finalisation of the matter before court.
The money, Mr Josephs argues in court papers the Sunday Express has in possession, should instead be given to him claiming that he is owed that amount by Batloung Tsabi’s and Green House Joint Venture.
Batloung Tsabi’s and Green House Joint Venture, the Ministry of Health, principal secretary (PS) for the Ministry of Health, Ministry of Finance, PS for Ministry of Finance and Attorney General are cited as first to sixth respondents respectively.
However, the joint venture’s Managing Director ’Maletšabisa Lerotholi, counter argued that the company does not owe Mr Josephs’s firm anything, accusing the latter and ’Makhotso Matšumunyane, are attempting to defraud them.
The court heard that on 2 March 2013, Batloung Tsabi’s and Green House Joint Venture entered into an agreement with the Ministry of Health to provide catering services. However, the firm thereafter also entered into a sub-contract agreement with Isaacs Food Suppliers for the supply of stock.
Pursuant to the agreements, Mr Josephs, noted in his affidavit that he duly supplied Batloung Tsabi’s and Green House Joint Venture with the stock and issued invoices for payment. He, however, claimed that was the company defaulted on its payments on the pretext that the ministry had not paid them.
“I then instituted legal proceedings against the first respondents (Batloung Tsabi’s and Green House Joint Venture) in CCT/0479/2014 for payment of an outstanding amount of M1, 116, 669. 00 and a judgment was entered in my favour,” Mr Josephs noted.
Following the judgment, Mr Josephs claims the Batloung Tsabi’s and Green House Joint Venture communicated with the Ministry of Health through their legal representatives, with the ministry “agreeing” to effect payment to the joint venture “so that first respondent could in turn pay me”. “I had at this stage issued two more invoices for the months of January and February 2015 for the amounts of M249 845.70 and M236 898. 00 respectively,” Mr Josephs said.
“First respondent through their legal representatives then requested the second respondents (Ministry of Health) to include payments of both invoices so that the amount due to me would be M1 603 412. 70.”
However, after the payment did not materialise, Mr Josephs claims he approached the Ministry of Health on 19 March 2015 to inquire about the payments and was advised by the ministry’s officers that payment was ready but was made in favour of Batloung Tsabi’s and Green House Joint Venture since the ministry had a contract with the company and not with him.
“I immediately contacted the managing director of the first respondent who informed me that their account with Standard Lesotho Bank was no longer functional and had been closed for lack of funds,” he said.
“The same managing director also informed me that the license and tax clearance certificates of the first respondent had since lapsed and were not renewed due to internal conflicts of directors therein. Furthermore, that should the payment be effected in favour of the first respondent, then I will not be paid at all or in the near future.”
Mr Josephs told the court he had not been paid since April 2014 “but (I) continue to supply the first respondents with stock to my financial detriment”.
“I further wish to aver that the first respondents’ conduct of not renewing their license and tax clearance is wrongful and unlawful in as much as it makes it impossible for me to be paid timeously and if at all,” he stated.
Mr Josephs affidavit is supported by Ms Matšumunyane, who also testified that she was the managing director of Batloung Tsabi’s and Green House Joint Venture and “attested to the fact the first respondent is indebted to the applicant in the amounts as appears in his founding affidavit”.
Ms Matšumunyane, who is also a Basotho National Party Member of Parliament, further told the court that the internal squabbles amongst the directors of the joint venture has “led to a situation where its documents have lapsed and to the detriment of the applicant”.
However, in her answering affidavit, Ms Lerotholi said, to the best of her recollection, Batloung Tsabi’s and Green House Joint Venture had never defaulted “in any payments in respect of any invoices duly served on the managing director being myself from any person whosoever”.
“The only invoices which were ever delivered are those which were delivered and received by one Nthatisi Matšumunyane being the daughter of ’Makhotso Matšumunyane who is a non-executive director,” Ms Lerotholi averred.
“In our view, this is an attempt by applicant (Mr Josephs) and Mrs Matšumunyane to defraud the first respondent company further.”
She added: “What the applicant omits and most deliberately so presumably, is the fact that he himself is worked in concert with ’Makhotso Matšumunyane, (and) defrauded first respondent the amount of M1 098 000 and M580 000 much to the prejudice and detriment of the first respondent.”
Ms Lerotholi further alleged Ms Matšumunyane “falsely held herself out and represented herself as the managing director of the first respondent and whereas she colludes with the applicant to defraud first respondent.”
The case continues before the commercial court on Thursday.
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