‘Mantšali Phakoana
Government says it is determined to do everything in its power to appeal the recent judgement delivered by the South African High Court against it in favour of German company Frazer Solar over a botch 2018 €58 million (about M1.2 billion) solar deal.
The court threw out the government of Lesotho’s application to overturn Frazer Solar’s arbitration award. It ordered Lesotho to pay costs to the company and South Africa’s ministry of justice. The two were cited as first and second respondent respectively.
Frazer Solar’s M1.2 billion claim includes interest and costs.
But the cash-strapped Lesotho administration is not taking it laying down.
Government spokesperson, Thabo Sekonyela told theReporter this week that government lawyers met on Wednesday to study the judgment and deliberate on the way forward.
“Our lawyers met on Wednesday to study the judgement and consider if the case can be appealable. We are waiting for their advice,” Sekonyela said.
He indicated that government would do anything possible to save the country from losing such a huge amount.
He also noted the judgment was not a celebratory milestone as it would cost Lesotho a fortune.
Sekonyela accused the former minister in the prime minister’s office, Temeki Tšolo, of denying Basotho their jurisdictional mandate and throwing them under the bus.
Sekonyela said Tšolo’s involvement with Frazer Solar was a reckless “rubbish” that would cost the country millions of maloti.
“What he did was an intentional act because the then Cabinet had rejected the whole idea of partnership between the government of Lesotho and Frazer Solar, but he decided to go behind its decision.
“Secondly, he has denied us (Basotho) our jurisdictional mandate by throwing us under the bus for the case to be heard in another country under that country’s laws,” he said.
According to court papers, on September 2018, Frazer Solar GmbH (FSG) of Germany signed an agreement with the government of Lesotho to develop a major solar and energy efficiency project with financing from the German government via development bank KFW.
The court further stated that despite the project being approved by the then prime minister Thomas Thabane, his finance minister then, Moeketsi Majoro, refused to co-operate and participate in it.
This led to a legal dispute between Frazer Solar and the government which eventually went to arbitration in December 2019. Frazer Solar prevailed in the arbitration and was awarded €50 million plus costs and interest in January 2020.
The government neither participated in the legal process nor did they honour the award. Subsequently, on May 2021 Frazer Solar put in motion efforts to seize Lesotho’s assets abroad.
The deal was supposedly meant to reduce the country’s electricity imports and involved installation of solar water heaters, solar PV, and LED lights across the country.
According to Frazer Solar, it developed the entire project including a finance package for the government.
All 350 000 non-electrified households in the country were earmarked to receive a solar lantern with an in-built mobile phone charger, thereby permanently eliminating the use of candles and paraffin as a lighting source.
The company’s managing director, Robert Frazer, who was based in the country for the development of the project, sweetened the deal by distributing food, clothing, and blankets weekly to thousands of families across the country in 2017 and 2018. He describes himself as a global developer of utility scale and nationally significant renewable energy projects, with a particular focus on developing countries in Africa.
However, the High Court of Lesotho in November 2022 ruled that the 2018 contract violated the country’s constitution and procurement regulations.
The court had said this means the contract in which Frazer Solar accuses the government of breaching is null and void, dealing a blow to the company’s aggressive bid to confiscate Lesotho’s assets around the globe.
The High Court judgment had revealed how Tšolo and Frazer pushed for the contract despite being aware that the Cabinet had not approved it. The court also ruled that procurement procedures had not been followed.
Tšolo reportedly signed the initial Memorandum of Understanding (MOU) with Frazer four days after Majoro refused to sign it in his capacity as finance minister, the judgement reads in part.
Majoro was said to have told Tšolo that he could not sign the MOU before it had passed through the relevant officials but the latter allegedly went ahead and signed the agreement on behalf of the government.
The court therefore, concluded that Tšolo lied to the cabinet that he had consulted the then ministers of finance, public service, local government, energy, and development planning.
Despite Majoro’s refusal to endorse the agreement, Tšolo told Frazer in a letter that the government agreed and committed to the project.
The court papers further revealed that Tšolo and Frazer went ahead to sign the Supply Agreement in September 2018 without cabinet approval although Tšolo did not have the authority to sign on behalf of the government.
Tšolo had denied before the parliamentary Public Accounts Committee (PAC) in July 2021 that he had signed the controversial deal with Frazer Solar.
“When you look at this signature that it is said to be mine, yes, the signature may be close to mine but that signature is not mine at all. My names when written by me are ‘Temeki Felix Tšolo’ but here the names are written as ‘Tsolo Temeki Felix’ and also the position of the person who signed on behalf of the government of Lesotho is also not there,” he said then.
