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'Too dirty to appeal'

Baipoledi. PIC MORERI SEJAKGOMO Baipoledi. PIC MORERI SEJAKGOMO
Baipoledi. PIC MORERI SEJAKGOMO

This is despite the fact that other applicants in the matter, Chinese construction companies were granted their wish to appeal to the CoA in the same matter. According to Justice Zein Kebonang, former Permanent Secretary in the ministry, Dr Kekgonne Baipoledi’s actions of initially giving the tender to the Chinese while they did not qualify was fatal to their case. This comes after they alongside two Chinese construction giants China Civil Engineering Construction Corporation and Zhong Gan Engineering and Construction Corporation (Botswana) (Pty) Ltd approached Justice Kebonang seeking orders to set aside earlier decision by Justice Kebonang to award a P1.5 billion tender to Tawana Joint Venture. consisting of G4 Civil (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd. Following an award by Justice Kebonang, the government and the Chinese contractors bid together applied for leave to appeal. While they initially submitted their cases individually, the matter was consolidated and the accounting officer at the Ministry and Attorney General being first and second applicants respectively, while the two Chinese companies were third and fourth applicants and Tawana JV companies as respondents. 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 was initially sidelined and the tender awarded to the Chinese companies (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. Delivering his ruling on the matter, Justice Kebonang stated that the accounting officer and the Attorney General assail the judgment of his court on several grounds as it appears in their founding affidavit filed on March 14, 2025. In the said affidavit, they had uttered that the court erred in: issuing a judgment that had a serious implication on the fiscal stability of Botswana; failing to accord deference to other structures created by the constitution that have the sole mandate of ensuring fiscal stability of Botswana; the judgment did not align with the Constitution of Botswana in that the court awarded a P1.577 billion tender, which constituted the ninth largest expenditure allocation ahead of the Ministry of Trade and Entrepreneurship and 56% of the Ministry’s entire development budget for the 2025/2026 financial year; and that the court ignored the statements by the Minister of Finance in the discharge of his constitutional mandate that the country is facing a serious liquidity crisis amongst other things.

According to Justice Kebonang, at the hearing of the application, Abel Modimo, representing government did not pursue any of the above listed grounds but instead sought to argue only two 'new” grounds - one of substitution, the other of cancellation. Modimo argued that the substitution order issued by the court was not competent but not on the reasons of lack of funds as had previously been argued by his clients but because Tawana JV did not meet the required Price of Establishment (P&Gs) threshold and had therefore, been properly disqualified by the first applicant. Regarding the cancellation of the tender by the Public Procurement Tribunal, Modimo submitted that although in terms of Regulation 16 (1) (b), it was only the procuring entity that could lawfully cancel the tender, it made no difference who between the procuring entity and tribunal cancelled it, and the tender remained validly cancelled. I will return to these arguments in due course.

In addition to his two arguments, Justice Kebonang stated that Modimo made the following “astounding” concessions on behalf of his clients: That the allegations of impropriety, misconduct and bias levelled against the accounting officer Baipoledi were proper. That the Attorney General supported all findings of fact made by the Tribunal against the Permanent Secretary. That the Chinese contractors should have been disqualified from the tender as they did not meet the technical evaluation threshold and were therefore, undeserving of the tender. That only the respondents qualified to be awarded the tender That although it was for the procuring entity and not the tribunal to cancel the tender, the cancellation by the tribunal was still within its authority and valid and; He accepted that the arguments he now advanced were new in that they had not been previously argued by his clients nor were they foreshadowed in the application for leave to appeal.

In response to Modimo's submission, Tawana JV represented by Tebogo Tladi and the Chinese contractors represented by Malcolm Ghoboza argued that government was not permitted to take up conflicting new positions or to argue new points of law which they had not taken up previously. “He said they could not approbate and reprobate, that is, say one thing in order to obtain an advantage and then turn round to argue the opposite of that for the purpose of securing some other advantage. “The issue whether or not Tawana JV had met the required P&G threshold was indeed never argued by the first to second applicants either before the tribunal or this court. The argument is not even foreshadowed in their application for leave nor was it contained in their heads of arguments. The first to second applicants only sought to argue it from the bar. To allow them to raise the point for the first time in oral argument would indeed be to permit the law of the jungle and sanction litigation by ambush. It simply cannot be allowed. Courts cannot decide issues falling outside the pleadings, without undermining issues of fairness and causing prejudice. It is simply impermissible for a party to plead a particular case and seek to establish a different case at the hearing of that case. If the court was either to step outside of the pleadings or allow a party to do so, the court would effectively be denying another party or the respective parties the right to know the case they had or have to meet and the right to fairly do so,” Justice Kebonang said.

In the absence of any factual basis undergirding their claim about the P&G threshold, Justice Kebonang said the likelihood of success on the P&Gs question does not exist and if it existed it is by no means clear and is in fact outweighed by the principle of finality in adjudication. “The applicants cannot make their case as they go along. If permitted to do so, there would never be an end to litigation. It would be unfair on the Respondents to have them undergo the expense of yet another hearing at first instance at the stage of leave simply because a fresh lawyer on the case thought of a new argument that may or may not succeed. Fairness animates that the court should not hear this new ground,” he said. Justice Kebonang also said the first to second applicants have not given any explanation as to why they did not advance the P&G argument at the Tribunal or before this Court. “They have not filed an affidavit to explain why the P&G question was not pleaded or raised. It would simply be unfair to let them argue it now simply because their original arguments had failed,” he said.

Justice Kebonang said he was shocked as he was to hear the concessions, he had no reason not to accept them. “These concessions, which relate to findings of fact about the conduct of the first applicant and which have now been referred to the Directorate on Corruption and Economic Crime (DCEC) for investigation, are damaging to the applicants' own case and undermine any prospects of success on appeal that they may have had,” he said. He said Modimo's concessions were that the conduct of his client (accounting officer), was so bad and so improper that it justified the cancellation of the tender. “According to Modimo, his client had acted in breach of all known procurement rules for the benefit of the third and fourth applicants. In light of these concessions, can the first and second applicants avoid the tender by invoking and relying on their own unlawful conduct to the detriment of either the respondents or the third and fourth applicants? I do not think so,” he said.

Justice Kebonang said there is a long-standing common law principle, that courts will not assist or aid a party whose case is based upon an immoral or illegal act. ”The first and second applicants claim for cancellation of contract or tender is based on amongst other things, the unlawful acts of the first applicant. On public policy grounds, the first applicant cannot seek to rely on his own illegality as a basis for cancellation of the tender. As the first and second applicants' leave application or 'cause of action' is based on their own illegal acts, the law will not extend its aid to them, nor listen to their complaint, but will leave them where their own acts have placed them,” he said. The application for leave to appeal by the first and second applicants was refused with costs.