The Court of Appeal (COA) will decide on February 5 whether the Public Procurement and Asset Disposal Board (PPADB) was right to refuse to award a multi-million Pula tender to Zac Construction Company.
The PPADB moved to the Court of Appeal after the High Court nullified its decision to deny Zac a P330 million infrastructure development contract for the Ministry of Lands in Metsimotlhabe Block 4. On Tuesday this week, Court of Appeal heard that the PPADB defied a recommendation by the ministry to give the job to the company on the grounds that none of the bidders had met all the requirements of the Invitation To Tender (ITT).
In October last year, the High Court ordered that the tender be given to Zac. The court stating that it was improper for the PPADB to cancel the award after engineers from the ministry in conjunction with consulting engineers had collectively considered Zac to be compliant in all respects. After the ruling, the PPADB moved to the Court of Appeal arguing that Zac’s application for judicial review at the High Court was premature.
The PPADB legal team led by advocate, Geoff Budlender submitted that the company had not exhausted local or domestic remedies, adding that it was mandatory for bids to show the critical path of the project. The PPADB said Zac did not include a critical path.
The critical path is defined as the longest sequence of activities in a project plan. The path must be completed on time for the project to complete on due date. “We analyse whether the Zac Construction bid showed the critical path, and submit that it could reasonably be concluded that it did not do so,” said Budlender.
The advocate submitted that there was no basis for an order directing PPADB to award the tender to Zac because company has not sought an order setting aside the decision of the board.
However, advocate John Peter on behalf of Zac argued that there was no general rule that a person who considers that he suffered a wrong is precluded from having recourse to a court of law while there is still hope of extra-judicial redress. Peter told the Court of Appeal that the position was different where the PPAD Act makes it clear that the intention of the legislature is to confine the parties to the remedies provided by the domestic tribunals.
“The argument that the application to the High Court is premature is premised on two bases: that there exists a domestic remedy, and secondly, that the Act made it clear that the domestic remedy had to be exhausted before recourse could be had to court,” he said.
The three Court of Appeal judges hearing the case have said that judgment will be delivered on February 5. The case is before Justice Lord Arthur Hamilton, Justice Monametsi Gaongalelwe and Justice Lord Cameron Abernathy.