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.
The judge explained that any attempt to oust the jurisdiction of the court or deprive it of its inherent unlimited jurisdiction would be unconstitutional and void. He noted that Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed but it cannot deprive the court of its constitutional jurisdiction to enforce the law enacted. The judge said under Section 112 (1) of the Act, it provides that a contractor who is aggrieved by the decision of an Accounting Officer may appeal to the Tribunal within 14 days from the date of the decision of the Accounting Officer. “Principles of statutory interpretation remind us that where the words of a statute are 'precise and unequivocal', their ordinary meaning must be adhered to. The use of the word "may" which is permissive as opposed to being mandatory, indicates in my view that one has an election either to file a complaint or appeal with the Tribunal or the High Court. I therefore find that the Public Procurement Act does not oust the jurisdiction of this court to hear procurement disputes,” Justice Kebonang stated. The judge further noted that much has also been said by the respondents about the obligation to exhaust local remedies before one can approach the High Court and that according to him, the position by the respondents seems to be undermined by the Act's use of permissive rather than mandatory language. “The only obligatory provision seems to be Section 104 (2), which requires the complainant to first file its complaint with the Accounting Officer. Where the Accounting Officer fails to make a decision on the complaint, the complainant "may" in terms of Section 109 (2) of the Act refer the complaint to the Tribunal,” he explained. Moreover, Justice Kebonanag said the use of the word "may" in Section 109 (2) is indicative of the fact that one is not obliged o approach the Tribunal for a remedy and that person, or entity, may elect to approach the High Court directly.
He noted that in the instant case, the applicant sought to review the decision of the Accounting Officer and that to suggest therefore, that it is confined to the Tribunal, which has no judicial review authority is to contend that Parliament intended to take away the foundational principles of administrative law which dictate that administrative decisions are presumptively subject to judicial review on the standard of reasonableness. He said it would be a difficult proposition to make or articulate as only the High Court has exclusive jurisdiction to conduct judicial review of administrative actions/decisions under Order 61 of the rules of Court and under the common law. The judge further emphasised that the original and unlimited authority of the High Court, being constitutionally derived can only be limited by a statute or a provision which traces back its power either directly or indirectly to the constitution itself and that if this authority cannot be found, the limitation would be unconstitutional. “I have no doubt, that judicial review is available against Accounting officers to address allegations of procedural impropriety, unlawfulness, illegality and irrationality. In the instant case, the applicant's complaint is that both the Procuring Entity and Accounting Officer disqualified it on a criterion not specified in the ITT and improperly and unlawfully awarded a tender to a party that should have been disqualified,” he noted. In conclusion, the judge emphasised that claims of unlawfulness, illegality and irrationality can only be established in the context of judicial review.
