Lobatse High Court judge, Jennifer Dube has thrown out evidence of spy chief, Peter Magosi in the P1.5bn case between China Jiangsu International and government.
The evidence led to the cancellation of the tender amidst allegations of security threats.
Whilst the court on Friday ruled in favour of government in the matter, Justice Dube punched holes into the evidence submitted by the Directorate of Intelligence and Security (DIS) Director General, Peter Magosi, which led to the Public Procurement and Asset Disposal Board (PPADB) awarding the P1.5bn construction of Moshupa Primary Hospital tender to Zhengtai Group Botswana, saying it was scandalous, vexatious and irrelevant to the proceedings.
Magosi had deposed a supporting affidavit stating that China Jiangsu International was being investigated for corrupt practices but could not share the details of such investigations as it is classified information.
He has also been quoted on several occasions saying he has classified information relating to dealings of China Jiangsu, which led to the company’s blacklisting.
However, Dube stated that the information from DIS advising the procuring entities not to conduct business with China Jiangsu International could not be admissible in court because it was introduced outside the procurement process.
She said that while she acknowledged that DIS’s mandate was to investigate cases involving corruption, and that its Director may advise or give directions as a consequence of his findings, his evidence has not
“Section 53(1) of the PPADB Act provides The Board shall act upon complaints by procuring and disposing entities, contractors, the media and the public in respect of any party to a procurement or disposal activity, against whom or which an allegation of impropriety is made.
However, in this particular case, the court is constrained from considering the said information from DIS for lack of details or proof thereof. The court works on and relies of facts not on speculation,” said Justice Dube in her judgement.
Dube further said while the court did not condone corruption as it kills democracy, she was however of the view that the manner in which the information or interjection of DIS was introduced and executed was un-procedural and outside the procurement process.
She ruled that if the nature of such interjections was part of the evaluation process, it would have made sense, but it emerged at the end without giving the applicant an opportunity to be heard or defend itself, she asserted.