Apex Properties triumphs in P14 Million tender war
Innocent Selatlhwa | Monday April 6, 2026 06:00
The protracted legal battle, which has found its way through the Public Procurement Tribunal, the High Court, and now the CoA, centres on the award of one of two tender packages floated by the Francistown City Council in 2022.
The tender was for a service contract covering the general valuation of ratable properties, maintenance and production of a valuation roll for the city.
The two packages were styled A and B. While bidders could bid for both, a successful bidder could only win one package unless compelling reasons existed to award both to the same bidder.
Apex and More Property Valuers (Pty) Ltd (MPV) were amongst the bidders. Initially, both packages were awarded to Apex. However, after a challenge from MPV, the award of Package A was withdrawn.
Apex appealed to the Public Procurement Tribunal, which in May 2024 set aside the revocation, set aside the subsequent award to MPV, and reinstated the initial award of both packages to Apex.
The company then appealed to the High Court. In a twist, a day before the High Court hearing, Apex filed a notice to abide, indicating it would no longer oppose the appeal.
However, the High Court proceeded to grant relief that went beyond the original notice of appeal. It cancelled a contract that Apex and the city council had entered into in September 2024, months after the appeal had been filed, and ordered the Council to conclude a fresh agreement with MPV.
The High Court also awarded costs against Apex. Apex sought leave to appeal, arguing that the High Court had granted relief that was not sought in the notice of appeal, that it had acted without jurisdiction, and that it had cancelled a contract that was already sixty per cent complete.
Leave was refused, prompting Apex to approach the CoA, which granted both leave to appeal and a stay of execution in April 2025.
Delivering the lead judgment on March 27, 2026, Justice Isaac Lesetedi, with whom the President of the Court of Appeal and Justice Tebogo Tau and Justice Lot Moroka agreed, upheld Apex’s appeal. The court found that the High Court had fundamentally erred in granting relief that was not properly before it.
“A claimant is required to sufficiently set out its case in its pleadings so as to enable the other party or parties to know the case it or they are to meet. They also enable the court to know the dispute it is to adjudicate,” Justice Lesetedi wrote.
The judgment emphasised that the same principle applies on appeal. While MPV had argued that formal amendment of the notice of appeal was unnecessary, the CoA disagreed.
“There is no logical, principle or policy reason why the laudable values of open, transparent and fair litigation should be placed on the back burner in appeals from a Tribunal or statutory body. To do so would be to place the respondent litigant in an appeal at serious disadvantage to the unfair advantage of an appellant who comes to court fully aware of what his complaint is,” the judge stated.
The court noted that Apex’s notice to abide was ring‑fenced to the relief sought in the original notice of appeal. It could not be interpreted as consent to the additional relief, cancellation of the September 2024 contract and an order compelling the City Council to contract with MPV, that appeared only in a draft order filed shortly before the hearing.
On the substantive question of whether a tender contract can be cancelled after it has been substantially performed, the CoA turned to its own binding precedent in Bergstan v Botswana Development Corporation [2012] 1 BLR 858 (CA).
That case established that even where a tender award is found to be irregular, a court has a discretion whether to set aside any contract that has been entered into, particularly where performance is already underway.
“In Bergstan, this Court pointed out that the courts have the discretion to refuse to award a remedy even if the invalidity of an administrative action has been established. This is generally done for reasons of expediency,” Lesetedi stated.
According to court documents, the High Court had attempted to rely on section 139(3) of the Public Procurement Act, which allows a court to revoke execution of a contract if sufficient evidence shows it may cause substantial loss to public revenue or prejudicially affect public interest.
But the CoA found that no such evidence had been placed before the High Court.
To the contrary, the record showed that Apex had been evaluated as the most competitive bidder. MPV’s original bid was more than P44 million, nearly three times Apex’s P14.5 million bid. Even after negotiations reduced the MPV bid to about P17 million, it remained P3 million higher than Apex’s. The tender rules did not forbid awarding both packages to the same bidder, and the contract between Apex and the City Council was already being performed.
“Cancelling that agreement required an exercise of discretion. In exercise of that discretion the court takes into account and balances factual material upon which a proper exercise of discretion can be established. This factual material includes evidence of when the agreement was entered into, its terms, the budget available, public interest in timely completion, and project progress,' the judgment stated
The CoA concluded that the High Court had misdirected itself. It set aside the High Court’s order in its entirety and replaced it with a fresh order upholding the appeal against the Tribunal’s decision.
Apex was represented by Attorney Joseph Akoonyatse while MPV was represented by Advocate Luc Spiller and Mutande Kaluzi.