Africa-Press – Botswana. In an unusual turn of events, a judge has granted two Chinese contractors leave to approach the Court of Appeal and challenge his own decision against them that came before at the High Court.
The dispute over a multibillion-pula water tender has taken a dramatic turn after two Chinese contractors were granted leave to appeal a High Court judgment that handed the lucrative project to Tawana Joint Venture.
Justice Zein Kebonang, who had earlier ruled in favour of Tawana Joint Venture in the contested P1.5 billion water project, has now permitted China Civil Engineering Construction Corporation and Zhon Gan Engineering & Construction Corporation to challenge his own decision at the Court of Appeal.
Justice Kebonang said the two Chinese contractors were never informed or advised by the procuring entity that their bid was neither compliant nor competitive.
A lot of irregularities
He agreed with them that the impropriety of the decision by Permanent Secretary in the Ministry of Lands and Water Affairs, Dr Kekgonne Baipoledi, should not have been used against them when the decision was not known to them.
Justice Kebonang has since recommended that Baipoledi should be investigated for corruption after the Public Procurement Tribunal discovered a lot of irregularities in the award of the tender.
The background to the matter is that on 24 November 2024, the Public Procurement Tribunal set aside the decision by Baipoledi to award the tender at P1.8 billion to China Civil and cancelled the tender.
The most responsive bid
China Civil did not appeal the decision of the Tribunal while Tawana JV did. Tawana JV argued that the tender should have been awarded to it because it had the most responsive bid.
Justice Kebonang said the question whether the Tribunal should have been confined only to the complaint filed perhaps warrants a further consideration.
“The Public Procurement Act establishes the Tribunal as an appellant structure,” he noted. “Can it then play an initiating role and consider arguments not presented by the parties in their complaints?”
Significant bearing
Justice Kebonang said the answer to this question has a significant bearing on whether the Tribunal was correct in disqualifying the China Civil Engineering Construction Corporation and Zhon Gan Engineering & Construction Corporation tender and on the substitution order he issued (awarding the tender to Tawana JV).
“The question, in my view, is weighty enough to justify leave being granted,” he said.
Turning to the stay application requested China Civil Engineering Construction Corporation and Zhon Gan Engineering & Construction Corporation, the judge said there is, as a fact, currently no appeal before the Court of Appeal.
Appellant jurisdiction
He noted that Section 11 (a) of the Court of Appeal Act requires that leave must be obtained from the High Court itself or, in the event of refusal, from the Court of Appeal, before decisions of the High Court can be appealed where the court had sat as an appellant court or had exercised appellant jurisdiction.
“Leave is accordingly a condition precedent to the filing of an appeal against the decision of the High Court sitting as an Appellant Court,” he averred. “Does the granting of leave then warrant the granting of a stay?
“In my view, a reading of Section 13 of the High Court Act appears to require that there must be an appeal or one pending before a stay can be granted.”
Irreparable harm
He then noted that an intention to appeal is not sufficient. Justice Kebonang said the need to show irreparable damage or harm is related to the purpose of stays, which is to protect an appellant from having his right of appeal rendered nugatory or merely nominal, if he should succeed.
In the absence of an existing or pending appeal, he added, it could be said that there is anything to preserve or that China Civil Engineering Construction Corporation and Zhon Gan Engineering & Construction Corporation would lose the benefits of appeal if a stay is not granted.
While Justice Kebonang granted the two companies leave to appeal, he refused to grant them a stay.
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