CoA halts signing of P1.5 billion water tender
Innocent Selatlhwa | Monday June 30, 2025 06:00
She expressed shock at Kebonang’s decision not to grant a stay of execution to the China Civil Engineering Construction Corporation and Zhong Gan Engineering and Construction Corporation (Botswana) (Pty) Ltd (here referred to as China Civil) despite having granted them leave to appeal. China Civil on May 30, 2025 filed an application seeking an expedited appeal, and stay of execution of the decision of the High Court pending the determination of the appeal they have lodged. Following the award of the tender by Kebonang. who had argued that the Procuring Entity, Ministry of Water and Human Settlements were not fit to award the tender, China Civil filed an application for leave to appeal cum stay with the court. Kebonang granted China Civil the leave to appeal to the CoA through a ruling delivered on 28th April 2025, but refused the stay relief. China Civil thereafter, filed their appeal papers. TAWANA JV would file their notice to oppose while Government through Accounting officer at the Ministry and Attorney General filed a conditional notice to abide, specifying that they would abide the decision of this Court provided that no adverse costs order was sought against them.
Background
In January 2024, the Ministry issued an invitation to tender for works relating to the detailed design and construction of the Ghanzi South & Kgalagadi North Villages Water Supply Project. Upon the completion of the evaluation process, the Applicants were awarded the tender by the Ministry, whereas TAWANA JV was disqualified at the financial evaluation stage on the basis that their proposed price for establishment (P&Gs) exceeded 22.5% of the total tender amount (exclusive of any sums allowed for contingencies and escalation). Dissatisfied with the award, TAWANA JV lodged a complaint with the Ministry, which was ultimately dismissed. This dismissal prompted TAWANA JV to appeal to the Public Procurement Tribunal. In essence, the Tribunal found that China Civil should not have advanced to the financial evaluation stage, having failed the initial technical evaluation, while TAWANA JV itself failed at the final financial evaluation stage. Consequently, the Tribunal declared the tender bid non-responsive and cancelled the entire tender process. Following cancellation of the tender by the Tribunal, TAWANA JV lodged an appeal with the High Court which court in the end set aside the decision of the Tribunal, and awarded the tender to TAWANA JV. Both China Civil and the Ministry submitted separate applications seeking leave to appeal against the decision of the court a quo, as well as an order for stay. These applications were subsequently consolidated and determined together. The resulting decision from the High Court by Kebonang was to deny both forms of relief sought by the Ministry, but to grant China Civil leave to appeal while refusing their request for a stay. Subsequent to these developments, the Applicants initiated the present application, which sought not only a stay of execution but also the expedition of the impending appeal. This application was brought on an urgent basis.
Garekwe’s determination
Garekwe noted that in his ruling on the issue of stay, Kebonang duly acknowledged the established requirements for the granting of such relief, particularly emphasising the importance of affording an appellant protection from a merely hollow victory. “This is especially pertinent where a stay is not granted stay pending appeal, only for the appellant ultimately to succeed, thereby rendering any success on appeal largely ineffectual.
She referred to Kebonang’s submission below: “In my view the decision to issue a stay ultimately rests with the discretion of the court. The power to stay necessarily exists to prevent irreparable injury to the parties resulting from the premature enforcement of a determination which may later be found to have been wrong.” “In deciding whether there is irreparable harm, the court is expected to balance the equities and determine on which side the risk of irreparable injury weighs most heavily.” “The need to show irreparable damage or harm is related to the purpose of stay, which is, to protect an appellant from having his right of appeal rendered nugatory or merely nominal if he should succeed.” According to Garekwe, the foregoing remarks by Kebonang must be assessed against the backdrop of his determination regarding leave to appeal. “Although his decision in the main appeal was adverse to the Applicants, he nevertheless recognised that certain grounds advanced in their application for leave and stay were indeed arguable,” she stated.
She further pointed out to part of his ruling where he states- The question whether the Tribunal should have been confined only to the complaint filed perhaps warrants a further consideration. The Public Procurement Act establishes the Tribunal as an appellant structure. Can it then play an initiating role and consider arguments not presented by the parties in their complaints? The answer to this question has a significant bearing on whether the Tribunal was correct in disqualifying China Civil tender and on the substitution order issued by this court. The question in my view is weighty enough to justify leave being granted.' Garekwe said it would logically be expected that he would grant a stay-if for no other reason than to safeguard China Civil's right of appeal. “Indeed, having just conferred that very right upon them in paragraph 28, it was essential to ensure that its efficacy would not be rendered illusory or purely academic should they prevail on the significant point identified as warranting appellate consideration. Thus, a fundamental question arises: why, in these circumstances, did he nonetheless refuse leave? This is the issue that now demands careful scrutiny and resolution,” she said.
She stated that at paragraph 39 of his Ruling, Kebonang determines that- ''In casu; without an appeal being filed or pending before the Court of Appeal one cannot speak of irreparable harm. In the absence of an existing or pending appeal, it cannot be said that there is anything to preserve or that China Civil would lose the benefits of appeal if a stay is not granted. What currently exists is not an appeal but merely dissatisfaction of the party intending to appeal. This is not a sufficient ground to grant a stay.' She said she concurs with the Applicants' contention that all indications suggest Kebonang would have been inclined to grant a stay of execution pending the determination of the appeal, had it properly directed its mind to the legal definition and implications of 'an appeal'. “Furthermore, having previously resolved to grant leave in its Ruling, the provisions of another Rule of this Court ought to have drawn the lower court’s attention to an additional, salient consideration,” she said. Garekwe said the requirement to attach a proposed notice and grounds of appeal serves a particularly significant function, especially in the context of applications for leave to appeal or to appeal out of time. “Upon the grant of leave, as expressly stipulated by sub-rule ( 4), there is no necessity for a party to subsequently file a fresh notice and grounds of appeal, contrary to the position adopted by the court a quo. Rather, the notice and grounds submitted in support of the application for leave are deemed to have been duly filed upon the grant of such leave. Had the court a quo properly appreciated this legal position, and had it accorded due regard to both Rules 2 and 20( 4), it would have been dissuaded from the line of reasoning advanced at paragraph 39 of its ruling. She said a holistic reading of the ruling, particularly with respect to the issue of stay, makes it evident that the lower court would have granted the stay in accordance with its reasoning in paragraphs 36 through 38 of the same ruling. “The lower court’s ruling has effectively afforded the Applicants fresh recourse, and, given that the threshold for establishing prospects of success in an application for stay is particularly low, it would be unjust for this Court, at this interlocutory stage, to second-guess or impugn the decision rendered by the lower court, especially where such decision is not directly under review,” she said. On the issue of expedition, Garekwe said it is imperative that all matters pertaining to the tender be brought to a conclusive and expeditious resolution; particularly when one considers the pronounced public interest underlying the origination of the contract. “The members of the public poised to benefit from this tender are justifiably eager for clarity as to whether the procurement will proceed as originally intended or face cancellation-and what consequences may forthwith ensue from such a cancellation. To disregard the profound connection between this issue and the public interest would be to neglect the very constituents whom the tender is ultimately designed to serve,” she said. Consequently, Garekwe granted leave for the appeal to be heard on an expedited basis. The Registrar of the CoA was directed to immediately meet with the parties for the settlement of the record of appeal, the security for costs and costs of the preparation of the record. “The Registrar will thereafter immediately place the matter before the President of the Court, who will determine the date when the appeal will be heard. The execution of the judgment of the court a quo rendered on 24th February 2025 is in the meantime stayed pending the determination of the appeal,” she said.