Gov’t broke to implement P1.5bn water tender
Innocent Selatlhwa | Tuesday April 8, 2025 10:49
This is because he could not trust the Ministry of Water and Human Settlements to do the right thing as they had proved to be biased when dealing with the matter before. Despite the bid having been almost P300 million cheaper and having passed all stages, Tawana JV, consisting of G4 Civil (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd, was initially sidelined and the tender awarded to China Civil Engineering Construction Corporation and Zhon Gan Engineering & Construction Corporation (Botswana) (Pty) Ltd (collectively referred to as China Civil here). The dispute is around Tender No. POU/ MLWA/ DTS/ NCOJANE WATER SUPPLY WORKS/ 0158/ 09102023, a Works Contract for Detailed Designs and Construction of Ghanzi South & Kgalagadi North Villages Water Supply Project.
The caseThe Public Procurement Tribunal on November 24, 2024, set aside the decision by the then Lands and Water Affairs ministry’s Permanent Secretary, Dr Kekgonne Baipoledi, to award the tender at P1.8 billion to China Civil. Amongst other orders, the Tribunal cancelled the tender. As if that is not enough, the ministry and its leadership will be investigated for corruption as the Tribunal was left shocked at the discoveries that many irregularities were discovered. China Civil did not appeal the decision of the Tribunal, while Tawana JV did so by issuing the statutory notice of intention to appeal as required by Section 138 of the Public Procurement Act. Both Tawana JV and China Civil contend that the Tribunal was wrong in cancelling the disputed tender. Tawana JV contended it should have been awarded the tender because it had the most responsive bid, while the China Civil similarly maintained that they were entitled to a substitution order.
The Accounting Officer at the Ministry of Water and Human Settlements and the Attorney General, who were the first and second respondents respectively, however, submitted that the substitution order is undesirable. They reasoned that they have no funds to proceed with the tender and that the court is no expert and is therefore not entitled to step into the shoes of the evaluating committee to award the disputed tender to either party. Both Tawana JV and China Civil submit that a substitution order is merited and a competent relief in the circumstances of this case. What separated them, however, was who between them should be the beneficiary of such an order. Delivering his judgment, Justice Kebonang said the debate amongst the parties concerning the availability of the project funds is easy to deal with. “As both Tawana JV and China Civil point out, in terms of Section 69 (a) and (b) of the Public Procurement Act, 2021, a procuring entity shall not invite a bid....if funds for the bid are inadequate or not available or where the procuring entity has issued a written confirmation that the funds required for the bid are available,” he said.
In addition, Justice Kebonang said Regulation 39 of the Public Procurement Regulations, 2023, provides that a procuring entity shall ensure that funds are available for procurement and shall, in Form E, set out in Schedule 1, confirm the availability of such funds before commencing a procurement process. Justice Kebonang said it is also common cause that the funds allocated for the project were managed by the ministry and no other. As a party that managed the funds allocated for the project, he said it was for them to provide a genuine explanation as to what happened to the funds rather than to provide an explanation that is needlessly bald, vague, and sketchy. “Good faith requires that the 1st-2nd Respondents, as the custodians of the funds allocated for the project, must explain what happened to the funds. They have a higher obligation that goes beyond bald assertions, not only to explain but show where the money went to,” he said.
The Appeal
The Accounting Officer, Ministry of Water and Human Settlement (formerly Ministry of Lands and Water Affairs), and the Attorney General argue that the government has no money for the tender to continue. The Chinese contractors, on the other hand, argued that the tender award ought to be cancelled because the tender criteria was not clear. The government, through the Ministry and AG, wants to be granted leave to appeal the judgment and/or order granted on February 24, 2025, as well as the court’s ruling of the same date dismissing their application to introduce new and/or fresh evidence on appeal. They also want the execution of the judgment and order of the court directing that Tawana JV is entitled to contract placement within 21 days of the order, be stayed pending the outcome of the appeal.
In an affidavit by Nchidzi Mmolawa, the Acting Permanent Secretary, it avers that they have prospects of success and/or an arguable case on appeal particularly that the court did not take into account the fact that the evaluation criterion was found to have been ambiguous, obviously causing serious prejudice to the bidders who had submitted their bids for consideration. Furthermore, he stated that the judgment has serious implications for the fiscal stability of Botswana.
More particularly, Mmolawa submitted that though this court is created by the Constitution of Botswana, it did not appear to accord the necessary deference to other structures created by the same Constitution that have the sole mandate of ensuring the fiscal stability of Botswana particularly that the judgment does not align with the Constitution of Botswana.
“The court has awarded a P1.577 billion tender, which constitutes the 9th largest expenditure allocation ahead of the Ministry of Trade and Entrepreneurship and 56% of the Ministry of Water and Human Settlements’ entire Development Budget for the 2025-2026 Financial Year, in terms of the 2025 Budget Speech, which the court a quo refused to admit into evidence. The order of the court a quo ignores the statements by the Minister of Finance, in the discharge of his Constitutional mandate, that the country is facing a serious fiscal liquidity crisis,” he submitted.
Mmolawa further stated that the judgment does not align with the public procurement legislation to the extent that the court a quo awarded a tender based on an ambiguous financial criterion.
“The Constitution places the obligation to ensure maintenance of fiscal stability, taking into account revenues and expenditures, on the Minister responsible for finance under Chapter VIII. I aver that the inclusion of public finance management in the Constitution of Botswana signals its importance in maintaining the fiscal soundness of the sovereign Republic. It is worth noting that public procurement is a sub-discipline under public finance management and/or forms an integral part of public finance management. Therefore, it cannot reasonably be suggested that the 2025 Budget Speech has no bearing on the issues to be decided by the court,” Mmolawa submitted.
In addition, Mmolawa lamented that the court refused to admit evidence from the Ministry of Finance, particularly the 2025 Budget Speech, which sets out Botswana’s roadmap for the 2025-2026 financial year.
“Based on the Proposed Notice and Grounds of Appeal, I aver that the Applicants enjoy prospects of success or at least a reasonable arguable case on appeal particularly that, viewed dispassionately, the Court of Appeal may well take a different view from that arrived at by this court,” he said.
Before the Court of Appeal, the Government intend to argue that the High Court erred and with respect misdirected itself, by non-direction, in fact and/or in law, in finding that it cannot interfere with findings of fact by the Public Procurement Tribunal and thereafter proceeding to overturn cancellation of the tender by the Tribunal, which had made findings of fact that the financial evaluation criterion is ambiguous.
“The court a quo ought to have proceeded to confirm the findings of fact by the Public Procurement Tribunal that the financial evaluation criterion is ambiguous and/or find that it cannot overturn the findings of an expert tribunal and/or evaluators on the issue as it has no similar expertise,” he stated. He also submitted that Justice Kebonang ought to have found that the jurisdictional facts that the order must be ‘reasonable and necessary’ are not present particularly that experts had agreed that the financial evaluation criterion is ambiguous (which finding it cannot interfere with), and there was no certainty in funding for the project thereby any substitution order cannot be reasonable and necessary. Mmolawa also argues that the court erred and with respect misdirected itself, by non-direction, in fact and/or in law, in interfering, on appeal, with the Public Procurement Tribunal’s exercise of discretion to cancel the tender on the basis that it was not a relief sought by the parties and/or that the Tribunal should have allowed the parties to address it on the issue. The court a quo ought to have found that there was no transcribed record of proceedings of what transpired at the Tribunal for it to make a definite finding that parties were not heard and/or complied with the legal principles relating to the challenge of the exercise of discretion on appeal.
“I aver, with respect, that should the Court of Appeal uphold any of the Grounds of Appeal, it would most likely determine the appeal in the Applicants’ favour. Alongside the request for leave to appeal the judgment and ruling of this court to the Court of Appeal, the Applicants pray for the suspension of the judgment pending appeal. In my considered view, the balance of convenience favours a stay of execution, as it will serve to maintain the status quo while the Court of Appeal decides the appeal,” he stated.
Tebogo Tladi of Jeremiah Tladi & Company represents Tawana JV, Government is represented by Botlhole Law Group while Taupedi Plaatjie reprersents China Civil.