Judge suspends tourism tender

Gaborone High Court has granted an interim interdict to prevent a tender of a tourism concession in the Okavango Delta following an application by Lodges of Botswana.

Justice Sigh Walia granted the interim order restraining Botswana Tourism Organisation (BTO) and Tawana Landboard from proceeding with a tender for NG27B (Zone 2) pending an ongoing court case between BTO, Tawana Landboard and Lodges of Botswana. The decision follows a protracted dispute between the owners of Lodges of Botswana on the one hand and BTO and Tawana Landboard on the other. The dispute is over a pristine tourism concession area- NG27B (Zone 2)-in the heart of Okavango Delta.

Lodges of Botswana lawyers-Collins Chilisa Consultants lodged an urgent application before Walia arguing that Tawana Landboard and BTO were taking steps to commence a third round of tender processing for NG27B (Zone 2) while legal proceedings have been instituted. The tender for the concession has already been the subject of several legal challenges in the High Court, Court of Appeal and Palapye land tribunal. At stake in this case is a big money tourism piece of land currently occupied by Lodges of Botswana under the directorship of Peter Sandenbergh. BTO and Tawana landboard want to evict owners of NG27B concession, which has occupied the concession for about 30 years.

It is not yet clear who is favoured for this prime land but BTO says in court papers that Sandenbergh cannot expect to retain the lease eternally without ever giving other investors an opportunity which would also allow the government to get the best out of the concessions. Sandenbergh is challenging the decision in court. Justice Walia ruled this week that parties should maintain the current arrangement as the matter is before the courts. “The respondents are hereby interdicted from publishing and/or conducting any further tender process in respect of the award of a concession and lease to any person (other than the applicant) in respect of NG27B (Zone 2),” reads part of Walia’s ruling. The matter is before the Palapye Land Tribunal. Also Walia said the status quo will remain pending the finalisation of the review proceedings launched or about to be launched by Lodges of Botswana in the High Court inter alia to set aside the decisions of the Landboard and BTO to disqualify the tenders submitted by Lodges of Botswana in August 2012 and October 2012 in respect of NG27B and for an order that the applicant be granted a lease in respect of the concession.

Tourism is a big industry especially in the Okavango Delta and the fight for prime land in the area is getting ugly pitting the BTO, Tawana Landboard and some rich businessmen. This is not the only case where BTO’s decisions on concessions in the Okavango are challenged in court. The owners of Kwara concession in the Delta are also challenging BTO and Tawana landboard decision to directly allocate NG20 concession to a company preferred by BTO. Second only to mining, tourism is the backbone of Botswana’s economy, contributing 12 percent to the Gross Domestic Product (GDP), in 2012. In this case Lodges of Botswana twice submitted a tender to continue operating two safari camps (Delta and Oddballs, approximately five hectares each) for another 15 years and in both cases was later informed by the Landboard that its tender had been unsuccessful.

The company’s technical proposal fell below the 70 percent pass mark in an evaluation exercise done by BTO official. Sandenbergh was then instructed to hand over and vacate the camps by December 31, 2012. In the urgent application before Judge Walia Lodges of Botswana attorneys question the legal basis on which BTO allocates tourism land.

Reads the heads of argument: It is common cause that the second respondent (BTO) has purportedly been appointed as the first respondent’s (Tawana Landboard) “agent” to conduct tender processes on its behalf. “ Lawyers argued that in terms of a clause of Lodges of Botswana’s lease, in the event of its tender being professionally accpetable, and being bettered by a third party, the applicant shall be given the opportunity to match the tender proposal of such third party and in such event it shall be entitled to enter into a new lease with the Tawana Landboard.

“In all the circumstances the first and second respondents were not entitled to summarily disqualify the applicant’s tenders and put NG27B up for tender a third time,” they said.