High Court rubbishes Magosi's evidence
Mpho Mokwape | Friday January 31, 2020 15:16
The company that has been having a messy battle with government over the cancelled tender amidst allegations of security threat was last week Thursday given the tender back when the High Court rubbished the DIS warnings and ordered Ministry of Land Management, Water and Sanitation Services and Public Procurement and Disposal Board (PPADB) to issue the tender back.
The ministry was advised to terminate all deals with the company due to security reasons after it was awarded the tender to do works in Maun that included the design, supply and build of water reticulation.
However according to High Court Judge, Rahim Khan, the reliance on the decision to cancel the tender was on a note by the DIS which was entirely misplaced adding that the contents of the notes must be ignored as a basis for rejection.
Khan explained that in terms of the PPADB Act there was prohibition against taking into account extraneous factors other than those in the tender documents in the evaluation and recommendation of an award.
“The Act is quite explicit about the factors to be considered in disallowing an award. The note by DIS, which makes certain allegations without being substantiated, is unacceptable as criteria to be considered in the evaluation process,” he said.
The judge said that PPADB has statutory obligations in terms of its mandate to fulfill therefore it cannot transfer those responsibilities to a party, as it was not permissible in terms of the legislation.
He pointed out that the ministry and PPADB by its conduct appeared to be employing tactics, which would allow the matter to drag on indefinitely whilst at the same the contract was being implemented.
“That there has been substantial progress in the implementation of the contract so that this court should not reverse the progress made in implementation and that on a balance of convenience it would be preferable for the contract to continue rather than, impede its implementation,” he said.
Khan said the ministry had failed to give any undertaking that the contract would not be implemented pending the outcome of the dispute between the parties but had sought to convince court that they would be more expedious approach.
The judge said the conduct would result in an inordinate delay in finalizing the matter as it would be referred to further argument and further delays before a judgment is delivered which would perhaps result in an appeal so that a further period of time would elapse and as a result benefiting them in the end.
“By the time the matter is finalized, implementation would have occurred and the courts are reluctant to impede a contract where substantial progress had been made and it would be wise to prevent their progress in a contract,” Khan said.
Subsequently, the judge ordered that the decision by the ministry in failing to deliver a letter of notification of award and providing a contract for signatures between it and China Jiangsu be set aside and that the ministry issues the letter of notification to the company.
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.
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.
It wanted the PPADB’s decision to re-award the tender to its rival to be set aside pending a review proceedings they have instituted against the ministry, PPADB and the Attorney General for the withdrawal of the tender.