Court halts 1.5b China Jiangsu tender
Mpho Mokwape | Friday February 7, 2020 14:35
Government was forced to give the Chinese company the tender back through a court order issued by Judge Rahim Khan on January 23, 2020.
However the State, through Ministry of Land Management, Water and Sanitation Services and Public Procurement and Disposal Board (PPADB) filed an urgent application before Judge Reuben Lekorwe seeking the judgement to be stayed pending the review application.
The Chinese company that had been in a tussle with government over the cancelled tender amid allegations of security threat won the tender back. Court had ordered the ministry and PPADB to issue the tender back after rubbishing Directorate of Intelligence and Security (DIS)’s warnings.
When staying the execution of the e through a judgement delivered on Monday, Justice Lekorwe said the government has a case and should have not been closed out to present its defence. Lekorwe explained that there was no factual basis for holding that the government was buying time to eventually render the review application nugatory.
“I think the status quo that is relevant for purposes of this application must be the one that obtained prior to the determination of the review application, that Zhengtai was the contractor that had been engaged and was not on site but had commenced the works,” he said.
He pointed out that the government asserted that it is liable to committal for contempt of court and decry that implementation of the order will delay the project for months and costs of such delay would be significant Lekorwe further explained that Judge Khan should have recused himself from the proceedings as now the state alleges that the review court misconstrued their case in the recusal application
“The applicants allege that the review court misconstrued their case in the recusal application by holding that a reasonable apprehension of bias can only be demonstrated by showing that the judge either exhibited hostility or personal interest in the matter,” he said.
He said the applicants also complained that the review court dealt with the application for leave to file answering affidavits when the court was not addressed on it.
Moreover, the judge said judge Khan’s judgment should have not only been based on the DIS warning letter but other principles should have applied. Meanwhile, the background of the case was that the clash between government and the Chinese company was reported to be bigger than just the cancelled tender and reports suggested that the State was advised by DIS to cease all dealings with it.
The ministry was advised to terminate all deals with the company due to security reasons after they were awarded the tender to do works in Maun that included the design, supply and build of water reticulation.
According to a confidential letter dated April 2, 2019 from the DIS addressed to the Permanent Secretary of Ministry of Land Management, Water and Sanitation Services the ministry was advised to terminate all deals with the company due to security reasons.
The company then launched an urgent application on March 27, 2019 before court seeking an interdiction for re-awarding of the tender to their rival company Zhengtai Group Botswana.
The company wanted the PPADB’s decision to re-award the tender to its rival set aside pending a review proceedings it had instituted against the ministry, PPADB and the Attorney General for the withdrawal of the tender.