Over 15 primary schools in the North West District Council are suffering the aftermath of a tender(s) dispute for work to build classrooms in 2018.
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 asking for review after the cancellation of the tenders without any reasons.
Following a lengthy legal battle at the High Court, a judgement was issued on June 10, 2020 directing that the tender be re-advertised and the companies submit afresh, however, they felt hard done and took the matter to the Higher Court.
Now, according to the appeal, the companies through their attorney Uyapo Ndadi said the appeal was against the whole judgement particularly where it held that the appellants should re-submit their tender bids and the entire tendering process afresh.
Ndadi argued that the High Court was wrong and misdirected itself in law in the fact that it raised and addressed an issue that was never placed before it.
“The Court erred in determining whether the entire tender be re-advertised and the process commence from the beginning. The only issue before court was whether the applicants have established a case for review of the tender and against the decision of the respondents on the basis that the fair hearing rule was breached,” he said.
He explained that it was improper for the judge to raise new issue and determine the case on the issue pointing out that it was not competent for the judge to make a case of his own by formulating his own issues then proceed to give a judgment based thereon contrary to the case that was put before him for adjudication.
In addition, the lawyer submitted that the judge for holding that only four of the appellants were successful in the original tender and that the second appellant was unsuccessful, the judge was also raising a point that was never pleaded before Court.
“The judge was wrong in holding that the standard used to resolve the dispute was aimed at achieving a ‘just and equitable result’ and leveling the playing field’. The judge misdirected himself as to the fundamental principles governing the High Court in that it is a court of law,” he argued.
However District council is opposing the appeal on grounds that the council was better equipped with information and resources in the decision making process to elect a competent bidder.
The council, that is represented by Lecha and Associates submitted that the awarding bodies in making decisions were guided by the Public Procurement and Asset Disposal (PPADB) Act and that it was rare for the Court to grant a substitution order because of the many factors to be considered in awarding a tender.
“If the Court was to substitute the decision of the council particularly ordering that the applicants be awarded the tenders it could have a negative impact on the tendering process,” said the attorney.
The council further argued that a decision to award the tender to the appellants would not only be detrimental to the appellants themselves but on other bidders that were erroneously disqualified which would in turn create an influx of litigation from other bidders.
Meanwhile 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 had a rude awakening immediately after coming back from the festive season on January 4, 2019 when they found letters on their desks canceling the tenders.
In one of the companies’ court documents they had indicted 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 4th 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 when the council gave them the reasons for the tenders’ cancellation dated January 21, 2019.
However the council though it didn’t dispute awarding of the tenders it denies that the cancellation was without merit.
The district 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.