Zambezi Motors triumphs in property lease dispute
Isaac Pinielo | Tuesday February 7, 2017 18:00
The tender involved the provision of between 9,000 to 11,000m2 of office accommodation complete with a car parking lot for about 400 vehicles for the Office of the Accountant General in the Ministry of Finance and Economic Development in Gaborone.
Varsha Enterprises, a company owned by property mogul Sayed Jamali, and Zambezi Motors, an estate company, owned by businessman Ishmael Nshakazhogwe, were the only companies that bid for the tender. However, it turned out that Varsha Enterprises had 10,957m2 of office space, while Zambezi Motors had only 8,290.90m2 office space and 1,776.30 retail space.
The PPADB had approved a request by the ministry for authority to enter into pre-award negotiations with Zambezi Motors, a decision that was later set aside by the High Court following review proceedings that were instituted by Varsha Enterprises. The High Court had also set aside the adjudication of Zambezi as the preferred bidder.
This led to the ministry and the PPADB to file an appeal seeking an order to overturn the High Court’s judgement and order.
The ministry and board contended that the appeal should be upheld, while both Varsha Enterprises and Zambezi Motors submitted that the appeal should be dismissed.
Varsha Enterprises urged the dismissal of the appeal on the basis that it was the preferred bidder and, on the facts as it sees them, the “inevitable” winner in the tender process.
Attorney, John Peter, for Varsha, submitted that the board had decided on December 15, 2015 to award the tender to Zambezi Motors, in that it had taken a decision to approve a request by the ministry for authority to enter into a pre-award negotiations with Zambezi Motors with regards to the tender.
It is understood that the High Court took a view that the “adjudication process was undertaken and completed despite attempts to deny this by Zambezi Motors in both its oral submissions and written heads of arguments”.
In dismissing the ruling, the Court of Appeal judge, Justice John Foxcroft stated that all the orders of the High Court were wrongly made and that they must be set aside.
He stated that the investigation directed in respect of the deputy permanent secretary and his entire evaluation team was wholly misplaced and should never have been made. “Equally misplaced was the direction to the Registrar of the High Court to bring this judgement and the orders to the immediate attention of the permanent secretary,” said Justice Foxcroft.
He further ordered that the matter be remitted to the PPADB and the ministry for the continuation and conclusion of the process wrongly halted in the matter. The appeal was therefore upheld with costs.