Pascalinah Kabi
LOCAL businessman, Teboho Tlokotsi, of IRT Group of Companies has petitioned the High Court to interdict Finance Minister Moeketsi Majoro from engaging any company to run the state lottery.
Dr Majoro first announced that the government would introduce a state lottery during his budget speech in February last year.
Mr Tlokotsi accuses Dr Majoro of secretly inviting a few selected South African based business people to bid for the establishment of the lottery.
He argues that as a result of the alleged veil of secrecy surrounding the invitation to tender, he was denied the opportunity of bidding.
“I aver that my business has a great interest in the lottery business. I consider the way and format in terms of which the invitation to tender was done secretly and during the December 2018 vacations when our business offices were closed; and without publications in the local newspapers as somewhat highly suspicious in the circumstances where the government is said to be launching lottery business in the Kingdom of Lesotho for the first time,” Mr Tlokotsi states in his court papers.
The matter, which was supposed to be heard on 15 January, was postponed to 18 February 2019 after the defendants asked for time to file their answering affidavits.
Dr Majoro, the Tender Panel of the Ministry of Finance, the Public Procurement Advice Division, the Ministry of Finance Principal Secretary, the Central Bank of Lesotho, the Minister of Parliamentary Affairs and the Attorney General are cited as the first to seventh respondents respectively.
Mr Tlokotsi wants the court to issue several orders, the first, directing that Dr Majoro should “suspend the bidding processes for the establishment and promotion of lottery”.
“And staying the engagement of any company for the establishment and implementation of the lottery… an order interdicting the first to the fourth respondents from performing any activity or conducting any business pursuant to the Lotteries Act No.10 of 1975…
“An order directing first to the fourth respondents to furnish the applicant the company profiles of the business entities considered eligible and all documents relevant to the tender…
“An order correcting, reviewing and setting aside the decision of the first respondent to award the tender to the extent that it contravenes the Public Procurement Regulations of 2007.”
Mr Tlokotsi states that towards the end of December 2018, Dr Majoro caused to be distributed to a specific group of business people in South Africa, a certain dateless document titled ‘Request for Expression of Interest’”.
“The confidentiality and secrecy in which the matter of this tender had been handled and attended to informed the resolution of my company to take this matter to this court for an interdict to ward off some perceived inequity that amounts to infraction of a far dealing, unconscionable conduct or abuse of power in the office of 1st respondent (Dr Majoro).
“He (Dr Majoro) had made an informal invitation to companies of the Republic of South Africa by deviating from the stringent requirements for formidable bidding and competition, which among other things include bank security, tax clearance, lottery license, business profile, financial statements from the bank spanning the period of three years, and audited financial statements by completely shutting the door on the faces of the second to the fourth respondents. This is irrational and irregular,” Mr Tlokotsi said.
Mr Tlokotsi said specific powers of oversight, prescriptive, regulatory and making provisions for vetting the tender bids for proper administration and management of the award of tenders to deserving businesses and consortiums were no longer the business of the minister as per the Public Procurement Regulations of 2007.
Mr Tlokotsi said Dr Majoro was trying to make them believe that the vetting of tender bids was his responsibility by relying on the laws that are either outdated or repealed.
He said by acting alone, the minister contravened the Financial Institutions Act of 2012 and the Public Procurement Regulations of 2007 which do not permit him to alone without the tender panel, PPAD and the principal secretary who are supposed to play an oversight role and “make provision for the vetting of the tender bids for proper administration and management of the award to deserving businesses”.
“The first respondent (Dr Majoro) obviously used his powers in terms of the Lotteries Act No.10 of 1975 to negate the letter and spirit of Public Procurement Regulations of 2007. This is the strategic move in terms of which the second to the fourth respondent are being phased out of the bidding processes because there is no reference to them in terms of the Lotteries Act of 1975.
“The decision of the first respondent to skirt around the Public Procurement Regulations of 2007 and the actions he took to invite tenderers through the dateless notice fall outside the perimeters of the law and the entire scheme of Financial Institutions Act of 2012 and the Public Procurement Regulations of 2007,” the court papers read.
He said that allowing Dr Majoro to continue with the tendering process on the assumption that the Lotteries Act makes no provision for the involvement of the Public Procurement Advice Division, Ministry of Finance Principal Secretary and Central Bank of Lesotho in the conduct of state and other lotteries would “involve a meaningless pretence to the spirit of the law in removing award of tenders from the offices of ministers, and the risk of inevitable backlash in the application of laws”.
He submitted that there was no way Dr Majoro should be allowed to promote a state lottery where there was no one who was accountable for all the monies received from the sale of tickets.
“He (Dr Majoro) is by profession a proficient economist who could not have missed such an important component of the Public Financial Management and Accountability Act in this regard.
“The resultant adverse impact of mismanagement of monies received from the sale of tickets on the economy of Lesotho as a country would be self-evident and this involves an attack on the structures of law and order,” Mr Tlokotsi said.
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