The Court of Appeal (CoA) has settled the P80m tender dispute that delayed the building of classrooms in over 15 primary schools by the North West District Council (NWDC).
Following a lengthy battle at the High Court where an order was made for the tender to be re-advertised and re-awarded, the highest court has ordered that the initial companies should continue with the tender and the construction of classrooms as agreed on the tender documents.
The companies, which are Dupa Enterprises Corporation, L&H Construction, Julu Investments, Cornicles Building Construction and Chareu Investment, that were awarded the tender individually for different schools, took the council to court for review after the cancellation of the tenders without any reason and Justice Rahim Khan had ruled in the council’s favour.
Justice Khan had issued a judgement on June 10, 2020 directing that the tender be re-advertised and the companies submit afresh. However, the companies felt aggrieved and took the matter to the CoA.
Now, the CoA has finally settled the matter by setting aside the decision of the High Court and that of the Acting Council Secretary that subsequently cancelled the tender.
According to Justice Singh Walia the companies had brought a review application about the cancellation of tender only but the High Court decided to deal with matters not before it.
“The application before the High Court was a review of a specific decision. Having found that there was a breach of the agreement, the court was in error by granting remedies that were not sought. This was therefore, a classic case of the court not properly dealing with a matter before it and proceeding to deal with one not before it,” he said.
The judge explained that had Justice Khan considered properly the case as it was presented to him, he could have come to no conclusion but to allow the review and set aside the decision cancelling the tender and that there was no basis for him to go further.
Justice Walia said there was a clear acknowledgment by the council’s transgression in not conforming to the tender documentation requiring it to give reasons for its actions, in the instance being the tender cancellation.
“It is common cause that no prior consultation had been held with any of the appellants, not any reason given for cancellation of the tender. Also the very tender documentation requires reasons to be given if cancellation of the tender is contemplated,” he said.
The disputed tender(s) was meant for the construction of educational facilities for the following schools; Komana, Toteng and Legothwana Primary Schools, Boyei, Boseja and Disaneng Primary Schools, Etsha 1, Shambombo, Koshonya and Etsha 13 Primary Schools, Shakakwe, Samchima and Kathiana Primary Schools, Kajaja Primary School, Mohembo Primary School and staff houses at Mogolokgwane Primary School.
According to the court documents, the companies that were individually awarded the tender in 2018 had a rude awakening immediately after coming back from the festive season on January 4, 2019 when they found letters on their desks cancelling the tenders without any reasons.
In one of the companies’ court documents, they had indicated that they had shut down their offices at the beginning of December 2018, as it was customary in the construction industry and upon arrival from the holidays on January they found letters dated December 18, 2018 to the effect that the tenders had been cancelled.
The companies said upon filing a court case, that's when the council gave them the reasons for the tenders’ cancellation dated January 21, 2019.
However, the council thought it did not dispute awarding of the tenders but it denied that the cancellation was without merit.
The Council denied that the tenders that were awarded had been unlawfully cancelled noting that the applicants have no legal binding rights to the tender and the district also has no legal obligation towards them hence there can be no right of remedy that they can talk about.
Uyapo Ndadi represented the five companies while Lawrence Lecha represented the NWDC..