Zac�s P330m tender dispute nears finality
Isaac Pinielo | Friday January 27, 2017 15:40
Zac, a company owned by prominent businessman Nicholas Zakhem, filed an appeal last year after the High Court had ruled against the company’s earlier application.
The company had sought the High Court to review and set aside the PPADB’s decision not to award it the multi-million pula tender for the construction of infrastructure development in Metsimotlhabe Block 4.
PPADB had allegedly disqualified Zac on the basis that its tender application did not meet the tender requirements contained in the Invitation To Tender (ITT) because it did not include a critical path.
When the company presented its appeal this week, its lawyer, Advocate John Peter insisted that Zac’s tender programme contained a critical path.
He argued that the presence or absence of a critical path was a minor deviation, which could not disqualify Zac from the awarding of the tender.
Although he submitted that the exclusion of the original programme by Zac was incorrect, Peter said that in itself is not determinative of the appeal, should Zac’s contentions not be accepted.
In addition, the counsel’s contention was that the evidence of the PPADB’s expert, who apparently recommended that Zac should be disqualified, does not bear scrutiny and that it does not engage with or properly raise a dispute in respect of the Zac’s evidence.
Peter noted that in preparation for its review of the PPADB decision in March 2015, Zac consulted with three independent experts asking them to examine the programme of works submitted in the tender application and to provide their professional opinions on whether or not the critical path was present.
“All three experts came to the same conclusion that Zac’s tender contained a critical path,” he stated.
He however regretted that the High Court had excluded the expert evidence on the basis that it was “impermissible to travel beyond” the original tender application to show that Zac’s bid was compliant.
Peter therefore submitted that the high court erred in excluding the expert evidence, adding that the judgement should be set aside.
He also sought an order directing the PPADB to award Zac the tender. Disputing the appeal, the PPADB, represented by senior counsel Bruce Burman, argued that the requirement for the critical path to be present in the ITT was material and not a minor deviation.
When the appeal concluded Monday, Justice Lord Hamilton reserved his decision and said he would give judgment on February 2.
The case was presided by a panel of three Court of Appeal Judges comprising Justices Hamilton, Craig Howie and Aber Nes.
Zac Construction was represented by Peter and Kerensa Millard from South Africa together with Lore Morapedi Attorneys, while Burman, Monthe Marumo and Kgotso Botlhole represented PPADB.