In his recent judgment where he decided on the controversial Botswana Defence Force (BDF), P169m tender dispute between the disqualified Hitecon (Pty) Limited and the awarded company, Zhong Gan Engineering (Pty) Ltd, Justice Kebonang said a party has an option once it has filed a complaint with the Accounting Officer, to either approach the Procurement Tribunal or the High Court for determination of any procurement dispute. “The only local remedy that must be exhausted as a pre-requisite to approaching either the Tribunal or the High Court is the filing of a complaint with the Accounting Officer,” he said.
The judge, in his judgment, revealed that there was a question of jurisdiction over public procurement matters which were raised by the Attorney General representing the Ministry of Defence and Security and the BDF as respondents in the case together with Zhong Gan Engineering. He said: “To answer the question whether the PPA ousts the jurisdiction of this court and creates jurisdictional supremacy in favour of the Tribunal in all procurement matters, one must necessarily start with the contours of the jurisdictional ambit of each court as outlined in the relevant enabling statutes.” Justice Kebonang explained that Section 95 (1) of the Constitution does not only create the High Court but also confers on it unlimited, original jurisdiction to hear and determine any civil or criminal proceedings under any law and such other jurisdiction and powers as may be conferred on it by this Constitution or any other law. He also revealed that Section 114 of the Public Procurement Act states,” there is established for purposes of the Act a body independent of the Public Procurement Regulatory Authority, known as the Public Procurement Tribunal” and that under Section 115 (1), the Tribunal is to adjudicate over matters brought before it by a complainant for a breach of any provisions of the Act or any appeal brought in accordance with the provisions of the Act,” explained Justice Kebonang. The judge further said what is self-evident from the foregoing is that unlike the High Court, the Tribunal can only have the jurisdiction conferred upon it by statute, that it is without any inherent jurisdiction and cannot act outside the confines of its statutory powers. “The Act only creates the Tribunal as an appellant body. This is plain from the grammatical reading of Section 115 and the ordinary sense in which the provision is crafted. A careful reading of Section 115 indicates that the object of the Act and the intention of Parliament was never to limit the jurisdiction of the High Court or confer exclusive mandate on the Tribunal in respect of procurement disputes,” he said.
