Debswana spy scandal: Court zooms on liability

● Judge wants submissions on companies avoiding liability on unauthorised contract

The judge presiding over the P110 million ‘spy work’ suit against Debswana Diamond Company, Justice Abednego Tafa has called Debswana and its former Spymaster, Mompoloki Motshidi of Infotrac to make time to advise him on the ‘Turquand rule’ which prevents a company from avoiding liability on an unauthorised contract due to non-compliance with an internal requirement.

Justice Tafa’s call came after Debswana lawyer, John Carr-Hartley of Armstrong Attorneys called for the case to be thrown out of court citing strong prohibitive internal processes.

One such was the one that played out in court when the former Permanent Secretary to the President, Carter Morupisi who is a former chairperson of the Debswana board of directors, admitted that he was aware of Motshidi’s debt.

Car-Hartley had questioned him on why he was not alarmed by the payment or the figure as a Debswana board member knowing that any procurement of over P100 million can only be authorised by the board, to which Morupisi replied: I never knew if the debt was a lump sum or that it accrued over time.

I also did not report it because it was a management issue and I was never involved in what management was doing. If there was something wrong, I expected Albert Milton to raise it when I engaged him about the alleged debt to Infotrac but he didn’t”.

Car-Hartley’s call signalised the closing of the case to which Justice Tafa informed the parties that he would need to be advised on the Turquand rule in relation to the case.

“You may submit your written heads of argument as you say but you will need to advice this court on the Turquand rule before we finalise everything,” he told both parties’ legal representatives.

According to legal framework, the rule protects persons from being affected by a company’s non-compliance with an internal formality pertaining to the authority of its representatives and is often used as an instrument that protects bona fide third parties dealing with companies.

The rule concerns or pertains to contracts purportedly entered into by a company’s representative in the absence of compliance with an internal formality to which his authority is subject.

The Turquand rule is targeted at a situation where a company fails to fulfill one of its internal requirements regarding the authority of its agents to contract and in terms of the rule, third parties dealing with the company are entitled to presume regularity, or at least, are not to be affected by the company’s non-compliance with its own internal formalities.

However, the operation of the rule will be excluded if the third party knew that the internal requirement had not been complied with.

Motshidi told the court that Infotrac had a history of undertaking assignment from Debswana without any written contract and the Debswana always paid without fail or any trouble in such matters.

He attributed the processes to the sensitivity of the jobs he was doing for Debswana, which included among others providing spying equipment and gathering intelligence information on some company employees.

“Whenever they wanted my services they would either send me a WhatsApp message, email or inform me directly, and I will give them the figure for the job, before being given a go ahead to do the job. I was comfortable with the agreement as Debswana always paid and we had built trust,” he said. Debswana lawyer, Car Hartley has described the spymaster’s bill as outrageous, further adding that it will take countless years to settle it but Motshidi reminded him that Debswana actually agreed to the charge.

Meanwhile, the parties are to file the final written submissions and judgement is expected on or around June 16, 2022.