The Court of Appeal has this week ruled that the cancellation of P1.5 billion tender bid for China Jiangsu (Pty) Ltd, by government was legal and in the public interest. The appeal arose from a dispute over the award of a tender for the design, supply and building of water distribution network, sanitation, reticulation, telemetry and scada, and other associated works in Maun.
In the debatable tender, China Jiangsu was the initial successful bidder and awarded the tender in the amount of a whooping P1, 568, 877, 164. 38 (one billion five hundred and sixty eight million eight hundred and seventy seven thousand one hundred and sixty four pula thirty eight thebe). Zhengtai Group (Botswana), was the runner-up in the evaluation in which its tender bid was a paltry P305 million above that of Jiangsu, but about half that amount was above the procuring entity’s cost estimates.
The controversial tender was floated around June 2017, with the procuring authority being the Ministry of Land Management, Water and Sanitation Services. In the appeal case brought by China Jiangsu, Public Procurement and Asset Disposal Board (PPADB), was cited as the 1st respondent, Attorney General as the 2nd respondent, while Ministry of Land Management and Water Sanitation was the 3rd respondent.
The last and the 4th respondent was Zhengtai Group, which was eventually awarded the tender (and therefore the subject of the dispute) following its withdrawal under dubious circumstances from China Jiangsu. Following careful consideration of evidence submitted before him, Court of Appeal Judge, Justice Isaac Lesetedi dismissed the appeal thereby confirming Zhengtai as the rightful appointee in the multimillion tender.
“Having considered all the factors in this matter, I am not satisfied that a case has been made for the granting of an expedited hearing of this appeal nor for an interim interdict pending that appeal. For that reason, the application is dismissed with costs,” Justice Lesetedi stated in the judgement delivered this week. In terms of the tender, Zhengtai Group, being dissatisfied with the award to China Jiangsu Company, had in the meantime filed a complaint with the relevant administrative structures soon after the award and the complaint was only finally dismissed in early March 2019.
Despite its request for notification of the award in its favour, China Jiangsu did not receive notification, and on 7th February 2019, it however received correspondence that the award to it “had been withdrawn for classified reasons.” On the 25th March 2019, China Jiangsu learnt that the tender had now been awarded to the Zhengtai group. Lesetedi indicated that it is common cause that the withdrawal of the award was made on the strength of adverse letter from the Directorate of Intelligence and Security (DIS).
Dissatisfied with the withdrawal of the award, China Jiangsu filed an application for the review and setting aside of the withdrawal of the award on the 14th February 2019, and that the application was not filed on urgency. In the Court of Appeal, Zhengtai opposed the application on a number of grounds particularly that there was nothing exceptional in the matter, it being a pure commercial dispute with commercial interests.
“But generally companies which bid for tender projects are primarily driven by the commercial interests of rendering services as required by the procurer and for a bargain in monetary terms,” Lesetedi highlighted. They had argued, which Lesetedi acceded to, that “the greater public interest is in the expeditious carrying out of the contract to provide members of the community with the basic services which they had yearned for many years and of which the need has become acute.”
“The needs for of the community for basic services which the Ministry of Land Management, Water and Sanitation has a duty to provide will be adversely affected by an indeterminate delay in implementation of the project whilst review proceedings are pending,” the CoA Judge observed. The court contended it is in the public interest that the values of a fair, accountable, and transparent procurement system are adhered to and parties whose rights have been infringed by the breach of those values can meaningfully have judicial recourse.
Justice Lesetedi added that the cost overruns which may well eclipse what damages the applicant may suffer together with the prejudice to the community brought about by the interim interdict are very significant. He emphasised: “there is no evidence that it at any time sought to have the review application itself to move on an expeditious basis having regard to the interests and needs of the community of Maun and the surrounding villages for which the tender is intended to provide. It therefore has got no public interest at heart as evidenced by its conduct. It has only got its commercial interest.”
According to Lesetedi, the prejudice China Jiangsu is suffering is weighed against the public interest and in light of its own conduct set out, weighs against it in the balance of convenience and in the consideration of the overall prejudice. Advocate John Peter and Kgalalelo Monthe represented China Jiangsu; Tshiamo Rantao and T. Resheng stood in for PPADB; while Ministry of Land management and Water Sanitation and Attorney General were represented by S. Thapelo and G.I Begane.
Botswana Police Service (BPS) has indicated concern about the ongoing trend where the general public falls victim to criminals purporting to be police officers.
According to BPS Assistant Commissioner, Dipheko Motube, the criminals target individuals at shopping malls and Automated Teller Machines (ATMs) where upon approaching the unsuspecting individual the criminals would pretend to have picked a substantial amount of money and they would make a proposal to the victims that the money is counted and shared in an isolated place.
“On the way, as they stop at the isolated place, they would start to count and sharing of the money, a criminal syndicate claiming to be Criminal Investigation Department (CID) officer investigating a case of stolen money will approach them,” said Motube in a statement.
The Commissioner indicated that the fake police officers would instruct the victims to hand over all the cash they have in their possession, including bank cards and Personal Identification Number (PIN), the perpetrators would then proceed to withdraw money from the victim’s bank account.
Motube also revealed that they are also investigating a case in which a 69 year old Motswana woman from Molepolole- who is a victim of the scam- lost over P62 000 last week Friday to the said perpetrators.
“The Criminal syndicate introduced themselves as CID officers investigating a case of robbery where a man accompanying the woman was the suspect.’’
They subsequently went to the woman’s place and took cash amounting to over P12 000 and further swindled amount of P50 000 from the woman’s bank account under the pretext of the further investigations.
In addition, Motube said they are currently investigating the matter and therefore warned the public to be vigilant of such characters and further reminds the public that no police officer would ask for bank cards and PINs during the investigations.
Botswana Congress Party (BCP) leadership walked out of Umbrella for Democratic Change (UDC) National Executive Committee (NEC) meeting this week on account of being targeted by other cooperating partners.
UDC meet for the first time since 2020 after previous futile attempts, but the meeting turned into a circus after other members of the executive pushed for BCP to explain its role in media statements that disparate either UDC and/or contracting parties.
The Director General of the Directorate on Corruption and Economic Crimes (DCEC), Tymon Katlholo’s spirited fight against the contentious transfers of his management team has forced the Office of the President to rescind the controversial decision. However, some insiders suggest that the reversal of the transfers may have left some interested parties with bruised egos and nursing red wounds.
The transfers were seen by observers as a badly calculated move to emasculate the DCEC which is seen as defiant against certain objectionable objectives by certain law enforcement agencies – who are proven decisionists with very little regard for the law and principle.