By Nthakoana Ngatane
MASERU – The government of Lesotho has filed an application in the high court to nullify the €100million Frazer Solar agreement that was signed by former minister in the prime minister’s office Temeki Tšolo.
In the papers the government says the court should find that the decision by Tšolo’s then office, to appoint Frazer Solar GmbH as a sole supplier of goods and services, and to enter into a supply agreement dated 27 September 2018 should all be declared unconstitutional, unlawful and invalid.
Advocate Qhalehang Letsika of Mei & Mei Attorneys has filed the papers representing the Attorney General.
The respondents are Frazer Solar GmbH, Frazer Solar (Pty) Ltd and Minister in the Office of the Prime Minister of Lesotho – not Tšolo in his personal capacity.
“He made the decision and acted in his official capacity, not as a person.” says Letsika.
The first affidavit was deposed by prime minister Moeketsi Majoro who was finance minister when the agreement was signed.
“The supply agreement purported to impose a financial commitment of €100million (M1.7billion) on the kingdom’s fiscus. This constitutes 4.4% of the kingdom’s Gross Domestic Product. Astoundingly, the kingdom was purportedly bound to this financial commitment without even a veneer of compliance with the constitution of Lesotho or the applicable procurement or public finance law by a signatory who was unauthorized to bind the kingdom…. I note that Mr Tšolo now denies that he signed the Supply agreement.” Says Majoro.
Majoro says there is an ongoing investigation into the circumstances of the signature of the supply agreement, and he has established a commission of inquiry to also investigate allegations of corruption and fraud in the conclusion of the agreement.
Lesotho also wants the arbitration agreement contained in Clause 24 of the supply agreement to be declared unconstitutional, unlawful and invalid.
It was the arbitration clause of the agreement that led to Frazer being granted a €50million settlement (M850million) in South Africa.
In this application the attorney general also wants the court to condone the country’s delay in instituting the nullification.
Letsika says Harley and Morris Lesotho has filed a motion to oppose the application on behalf of Frazer, but the firm told Lesotho Express News that it acts on instructions from another firm whose details we are yet to confirm.
Meanwhile another application from the Lesotho government, assisted by the African Legal Support Facility (ALSF) housed at the African Development Bank, will be heard in Johannesburg next month to set aside a court order that confirmed the arbitration decision reached in that country.
The ALSF says it has “supported the Kingdom of Lesotho in launching an Application in the High Court of South Africa for a stay of execution against state assets.”
The ALSF says it is also supporting Lesotho in other jurisdictions where Frazer Solar has sought to register the award.
“The desired outcome of the Government of Lesotho is to set aside the arbitral award itself in due course.” says ALSF