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BULGARIAN COMPANY SUES GOVT

15/12/2021 08:39:00 BY MBONGISENI NDZIMANDZE

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MBABANE - A company from Bulgaria is demanding over E1 million from the Government of the Kingdom of Eswatini.

Excelor Holdings Group EAD was contracted by the government to supply and install prefabricated offices for the development of a social protection system in the country. In its particulars of claim, the plaintiff (Excelor Holdings Group EAD) submitted that the High Court had jurisdiction over the matter as the contract was performed in the Kingdom of Eswatini.

According to the Excelor Holdings Group, on December 2018 at Mbabane, it was represented by Magdalena Vasileva and the Government of Eswatini by Bertram B Stewart, entered into a written supply contract. The plaintiff submitted that the material express, alternatively tacit terms, included the following; supply, delivery and installation of pre- fabricated offices in different areas in the Kingdom of Eswatini and the contract price for the aforesaid supplies was E4 536 130.00 . It was further the plaintiff’s submission that the contract was allegedly made up of inter alia, the contract agreement, special and general conditions. The company narrated that the implementation period of the task was 12 months from the contract signature until the provincial acceptance.

Alleged

The plaintiff further alleged that on December 13,2019 represented by its then general manager, Vasileva and the first defendant ( Eswatini Government) by Bheki Bhembe entered into an addendum which provided that; the implementation period of the task was 16 months from the contract signature until the provincial acceptance. “On March 25, 2020, the plaintiff due to the COVID- 19 pandemic requested an extension of the period of the implementation and this request was not rejected by the Government of the Kingdom of Eswatini,” alleged the plaintiff.

It was further the plaintiff’s submission that instead, the necessity of such an extension was also justified by the Government of the Kingdom of Eswatini on March 28, 2020 wherein it advised the plaintiff that “South Africa is already on full lockdown I do not foresee the experts being allowed to Eswatini.” The company averred that it allegedly performed its obligations as per the contract by supplying and delivering the pre- fabricated offices to the Eswatini Government within the period of implementation and in accordance with technical specifications. The first defendant, according to plaintiff, was advised of the fulfillment of the contract and it (plaintiff) requested the issuance of the provisional certificate on July 17, 2020.

Owing

It is alleged by the plaintiff that pursuant to the above, on September 4, 2020 it furnish the first defendant with the invoice of balance owing and the request for the provisional certificate. “The Project Manager of the first defendant, having failed to issue a certificate or reject the application for provisional certificate by August 2020 as per Article 31.2 of the general conditions, became liable for the full amount of E2 721 678.00 as same was due and payable,” submitted the plaintiff. It is alleged by the plaintiff that the first defendant only made a payment of E1 830 697 on June 10, 2021 and by failing to make full payment of the contract price, breached the contract.

The plaintiff avowed that consequently, in terms of Article 28.2 of the general conditions, it was entitled to default interest at rediscount rate applied by the central bank of the partner country which was to be E159 449.50 for the period of November 3,2020 until June 10,2021. “The plaintiff attempted to settle the dispute it was having with the first defendant regarding the payment of the balance of contract price. Despite the plaintiff and the first defendant undergoing the conciliation process, the process failed to go ahead as the European Commission stepped down from being the Conciliator,” reads part of the plaintiff’s particulars of claim.

In light of the failure of the conciliation process and in compliance with The Limitation of Legal Proceedings against the Government Act of 1972, on August 12, 2021 the plaintiff severed the Government of the Kingdom of Eswatini with a letter of demand. According to the plaintiff, despite the demand, the Government of the Kingdom of Eswatini allegedly failed, neglected and/or refused to make the payment of the balance of the contract price and the default interest. The company wants the court to direct the government to pay the contract price of E890 981.000 and payment of the default interest amounting to E159 449. 50. The matter is pending in court and appearing for the plaintiff are lawyers from Robinson Bertram.