CoA confirms Kebonang’s P1.5 billion water tender award
Innocent Selatlhwa | Monday April 6, 2026 06:00
This is after the Court of Appeal (CoA) confirmed the award of the P1.5 billion water supply tender to Tawana Joint Venture by the then High Court Judge Zein Kebonang. The case had dragged on for almost two years from the Public Procurement through the High Court and ultimately the CoA, leaving the residents with an extended, unreliable water supply.
Kebonang had awarded the tender to Tawana JV after he came to a conclusion that initial awardees Civil Engineering and Construction Corporation (Pty) Ltd and Zhong Gan Engineering & Construction Corporation Botswana (Pty) Ltd Joint Venture (CCECC/ZGEC JV) were ‘superimposed’ by the then Permanent Secretary, Kekgonne Baipoledi.
The proceedings originated in a major tender the Ministry initiated to construct infrastructure for water supply to the said villages. The design scope included boreholes, storage tanks, a water treatment plant, pumping stations, over 800km of pipework, access roads and ancillary works. The appellants, CCECC/ZGEC JV, had appealed against a High Court judgment that nullified an award they had secured for the Ncojane Water Supply.
Of the ten initial bids, only two survived a preliminary screening to weed out 'unresponsive' tenders. These were the two competing JVs. During the technical evaluation, the evaluation committee determined that only one, Tawana, qualified to proceed to the financial evaluation. CCECC/ZGEC had to be disqualified. But the Ministry's Accounting Officer, the then Permanent Secretary, Dr Kekgonne Baipoledi, baulked. He directed 'a re-evaluation', claiming that some of the bids had been 'unfairly disqualified'.
The evaluation committee redid its work, but it reached the same conclusion: only Tawana qualified for financial assessment. While CCECC/ZGEC's overall score was 79.3%, its Project Management Plan, a crucial part of the technical evaluation, had scored below the imperative sub-minimum of 60%.
On this, the tender specifications were crystal clear: a score below 60% in any one of these categories entailed disqualification. Once more, the evaluation committee nixed CCECC/ZGEC's bid.
By contrast, Tawana scored 92.9% in the technical evaluation, with more than 60% in each quality category. Intrepidly, the evaluation committee restated its conclusion that the Accounting Officer should approve the financial opening for Tawana only.
Two days later, there was a blunt response: 'The evaluation team's proposal is rejected'. The decision 'is made', the Accounting Officer continued, to open the financials of both Tawana JV and CCECC/ZGEC. The reason was to allow for further competition. A statutory notice was published, listing both CCECC/ZGEC and Tawana as technically compliant. The evaluation committee now assessed the financial bids. Tawana's was Pl 577 362 030.33; CCECC/ZGEC's Pl 822 978 888.89 – nearly one-quarter of a billion Pula higher. Once more, the Committee showed intrepidity: unanimously, it recommended that the tender be awarded to Tawana. Undeterred, the Accounting Officer did the opposite. He disqualified Tawana. And on 3 October 2024, he made an Award Decision in favour of CCECC/ZGEC.
Aware at this stage only of the financial evaluation, Tawana swiftly instituted proceedings before the Tribunal.
G4 Civils (Pty) Ltd, Landmark Projects (Pty) Ltd and Asphalt Botswana (Pty) Ltd (Tawana JV) successfully challenged the award to CCECC/ZGEC JV before the Public Procurement Tribunal. The Tribunal set aside the award to CCECC/ZGEC but declined to grant Tawana the remedy it sought, namely substitution of itself as the winning bidder.
Instead, the Tribunal ordered cancellation of the entire process, and its remission to the Procuring Authority, the then Ministry of Lands and Water Affairs (now the Ministry of Water and Human Settlement).
Tawana appealed to the High Court against the cancellation order. Also aggrieved by the cancellation, but with opposite intent, CCECC/ZGEC cross-appealed. Each of the contesting JVs asked the High Court to substitute it in the tender award. On 24 February 2025, the High Court, through Kebonang, upheld Tawana's appeal but dismissed CCECC/ZGEC's cross-appeal. The Court granted Tawana the relief the Tribunal had denied it, being an order substituting it as the successful bidder. The High Court, thereafter, on 28 April 2025, granted CCECC/ZGEC leave to appeal to the CoA, but simultaneously refused the Ministry leave. The Ministry then sought, irregularly, to cross-appeal, in support of the Tribunal's cancellation, without first obtaining the leave of the CoA, as section 11(d) of the Court of Appeal Act (CAP 04:01) requires (since the High Court was itself sitting as a court of appeal from the Tribunal); but both JVs objected on the basis of the procedural blunder.
The Ministry then belatedly sought the CoA's leave to appeal, but by then its application was weeks out of time.
On 7 October 2025, Justice Michael Leburu, noting that the Ministry had omitted to seek condonation for its late application, refused the Government leave to appeal.
This meant the Ministry appeared, not as an appellant or cross-appellant challenging the High Court's order, but only as a respondent opposing CCECC/ZGEC's appeal but procedurally disabled from seeking its own relief.
According to CoA documents, undeterred, the Government respondents pressed their contentions as though they were appealing or cross-appealing. “They urged this Court to set aside the High Court's decision to award the tender to Tawana; to declare both JVs unqualified for the award; and to remit the entire matter to the Ministry for a fresh adjudication of the tender, or for its re-advertisement,” the CoA bench of Judge President Tebogo Tau, Justice Isaac Lesetedi and Justice Edwin Cameron stated.
The High Court's order substituting Tawana for CCECC/ZGEC in the tender award was vigorously challenged. CCECC/ZGEC contested its displacement from the award, while the Ministry opposed any substitution. The Ministry urged that the Court is not confined to the relief that CCECC/ZGEC seeks, namely the award of the tender to itself, but may order what the High Court should have ordered, had it properly considered the law and the facts, namely cancellation of the tender.
“Accepting that the Ministry is entitled to seek cancellation of the tender and its remission to the Procuring Authority, it nevertheless seems to me that the High Court order was right. The Court substitutes its determination for that of the administering authority only with great circumspection,” they state.
The three Justices of Appeal noted unusual features of the present case stand out. “First, in the High Court, the centrepiece of the Ministry's attempted intervention was its insistence that the Government had no money to pursue the tender. In this Court, the Ministry did not persist with that argument.
Second, and more significantly, the facts here confront the Court with the uncommon circumstance that the Court is not itself making the reckoning as to the tender award. Instead, it relies, in effect, on an assessment that the Procuring Authority's own evaluation committee has already made - not once, but twice. This is that Tawana is the only competing bidder to whom the award is justified,” they state.
The Justices of Appeal found that it was only because the Accounting Officer at the award stage superimposed gross improprieties on the evaluation committee's recommendation that CCECC/ZGEC was granted the tender, and not Tawana. These improprieties, they state, had no warrant in the tender calculations.
“A substitution order would thus not be a fresh determination by the Court, or a redetermination, but would merely remedy the Procuring Authority's wrongful intervention at the final stage of the process. In these circumstances, the appeal against the High Court's order should fail,” they wrote.
Tawana was represented by Advocate Alistair Franklin, Advocate Mpho Garebatho and Attorneys Unoda Mack, Tebogo Tladi and Magadi Mphothwe. CCECC/ZGEC was represented by Attorneys Malcom Gobhoza, Mike Rasetshwane and C K Masuku.