Court rejects fast-track appeal over suspended P169m airbase tender
Mpho Mokwape | Monday August 25, 2025 09:35
It threw out the expedited hearing appeal because the appellant, Zhong Gan, had failed to properly file its notice and grounds of appeal as required by the Court Rules.
The case involves a contested tender awarded to Zhong Gan on February 22, 2024, before it was suspended by the High Court on February 27, 2025, after another bidder, Hitecon, sought an interdict against the Ministry of Defence and Security, the BDF and Zhong Gan Engineering.
Hitecon had sought a court intervention citing irregularities after it was allegedly disqualified from the 2023 controversial tender for failing to provide a list of local subcontractors. The tender was allegedly awarded to Zhong Gan Engineering. The Hitecon company reportedly upon learning about the tender being awarded to Zhong Gan, approached the court, wanting, among others, a rule nisi (temporary order) to interdict and restrain the respondents from proceeding with the procurement process and freezing the procurement process pending a review application.
On the expedited appeal ruling, the court ruled that the matter was not properly before it, and Justice Edwin Cameron said Zhong Gan would pay the costs of Hitecon.
“The appeal is not properly before the court and is struck out, and Zhong Gan is to pay the costs of the first respondent, but only for the hearings on 8 July and 8 August 7 2025,” he said.
The judge explained that the company had failed to take the legal step of filing a formal notice and grounds of appeal as required under Rule 17 of the Rules; instead, Zhong Gan relied on the proposed grounds it had included in its urgent application.
Justice Cameron found the approach incorrect, pointing out that Rule 11 allows urgent hearings, but does not replace the obligation to file a proper appeal under Rule 17.
“This requirement is vital because it confirms the Court’s jurisdiction to hear the appeal,” he said.
Meanwhile, Zhong Gan had tried to argue that the documents already submitted should count as the official notice and grounds for appeal, but the court firmly rejected it, emphasising that the Rules must be followed strictly and that failure to do so means the appeal cannot proceed.
Despite losing the round, Cameron noted that Zhong Gan may still apply for leave to appeal out of time.
However, it advised the company to strictly follow all legal requirements if it decides to do so.
At the heart of the dispute is that in court papers, it states that in 2023, Hitecon was invited by the BDF to tender for three (3) projects, and two of the projects were to be carried out at Thebephatshwa Air Base and the other in Francistown.
The invitation to tender (ITT), which was floated by the BDF, reportedly indicated, among other things, that the tenders would close on July 18, 2023 and that all bidders were expected to attend a compulsory pre-tender meeting at Thebephatshwa on July 4, 2023.
“The ITT also indicated that the tender documents could be collected from the BDF Barracks in Mogoditshane from June 26, 2023 and that queries or clarifications should be made and or received by the procuring entity no later than seven (7) working days before the close of tender. It is common cause that the applicant responded to the tender and attended the compulsory pre-meeting at Thebephatshwa, while the third respondent only did so later on,” reads court documents.
According to the documents, at the tender site visit attendance, the register indicated that the compulsory pre-tender meeting was attended by twenty-one (21) companies all together and Zhong Gan allegedly said that it received a notice to tender on July 5, 2023 and that on July 6, 2023 it proceeded to purchase the tender documents and on the same day attended a compulsory pre-tender meeting at the Botswana Defence Force Barracks in Donga, Francistown. “It was at this meeting that it was discovered that there had been another compulsory pre-tender meeting in respect of the Thebephatshwa Air Base tenders at Thebephatshwa on July 4, 2023. Although the date for the compulsory pre-tender meeting was stated in the tender document, the third respondent says it was never notified of the date,” further stated court papers.
Meanwhile, on July 10, 2023, Zhong Gan allegedly wrote to the BDF to enquire among other things whether (a) it could tender for the Thebephatshwa projects notwithstanding having not attended the compulsory pre-tender meeting of the 4th July 4, 2023 and (b) whether the bid timelines could be extended by at least two weeks for it to provide a more favourable proposal. Subsequently, court documents stated that as a result, an undated and addressed to no particular entity, it appeared that an addendum was then issued not by the BDF but by the Director of Procurement Oversight, at the Ministry of Defence and Security, extending the closing date from July 18, 2023 to August 1, 2023 and setting a compulsory pre-tender meeting for the July 20, 2023, notwithstanding that this meeting had already happened.
The papers further mentioned that on May 2, 2024, the third respondent was awarded the disputed Thebephatshwa project at the value of P169, 513, 412. 68 (VAT Inclusive) to be completed within 16 months, while the applicant's bid for the same project was P101, 735, 174.85 (VAT Inclusive) with a completion duration of 10 months. “Following its disqualification on March 19, 2024, the applicant immediately filed a complaint with the Accounting officer in terms of Section 104 (2) of the Public Procurement Act. The Section in 51 question provides that a contractor who is aggrieved by a breach of any provision of the Act or claims to have suffered or is likely to suffer loss or damages due to a breach of a duty imposed on a procuring entity shall at the first instance, lodge a complaint before the Accounting Officer for review,” states papers.
The documents further revealed that the applicant's complaint, so lodged, remained unanswered until April 1, 2024, when its disqualification was confirmed on the basis that it had not provided a list of local sub-contractors in its bid documents as required by the ITT.
The dispute further indicated that in the dismissal letter, the Permanent Secretary in the Ministry of Defence and Security, Pearl Ramokoka, in her capacity as the Accounting Officer, wrongly stated that Zhong Gan had attended the July 4, 2023, compulsory pretender meeting at Thebephatswa, when that was not so. Although the letter from the Permanent Secretary appears to have been written on April 11, 2024, Hitecon alleged that it only became aware of it on May 2, 2024, when the letter reached them.