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.
As the preparations for the Botswana Democratic Party (BDP) congress are about to kick off, reports on the ground suggest that the party’s Deputy Treasurer Jackdish Shah will not defend the position in August as he contemplates relocation.
According to sources, the businessman who joined the BDP Central Committee in 2015 at the 36th Congress held in Mmadinare is ready to leave the party’s politburo. It is said he long made up his mind not to defend the position last year. A prominent businessman, Shah, when he won the position to assist Satar Dada in 2015 was expected to improve the party’s financial vibrancy. By then the party was under the leadership of Ian Khama.
According to close sources, Shah long decided not to contest because he has fallen out of favour with the party leadership. It is said he took the decision after some prominent businessmen who are BDP members and part of football syndicate decided to push him out and they used their proximity to President Mokgweetsi Masisi to badmouth him hence the decision.
“The fight at the Botswana Football Association (BFA) and Botswana Football League (BFL) has left him alone in the desert and some faces there used their close access to the President to isolate him,” said a source. Media reports say, Shah does not see eye to eye with BFA President MacLean Letshwiti who is also Masisi’s buddy hence the decision.
BFL Chairman Nicholas Zackhem is said to be not in good terms with Shah, who at one point Chaired the then Botswana Premier League (BPL). “He is seriously considering quitting because of what is unfolding at the team (Township Rollers) which is slowly not making financial gains and might be relegated and he wants to sell while it is still worth the investment,” said a highly placed source.
Shah is a renowned businessman who runs internet providing company Zebra net, H &G, game farm in Kasane, cattle farm in Ghanzi region and lot of properties in Gaborone. He also has two hotels in USA, his advisors have given him thumbs up on the possible decision of relocating provided he does not sell some of the investments that are doing well.
Asked about whether he will be contesting Shah could not confirm nor deny the reports. It is said for now it is too early as a public decision will have to be taken after the national council meeting and prior to the national congress. “As a BDP Central Committee member he cannot make that announcement now,” a BDP source said.
BDP is expected to assemble for the National Council during the July holidays while the National Congress is billed for August. It is then that the party will elect a new CC members. The last time BDP held elective congress was at Kang in 2019. The party is yet to issue writ.
The government has failed to implement some commitments and agreements that it had entered into with unions to improve conditions of public servants.
Three years after the government and public made commitments aimed at improving conditions of work and services it has emerged that the government has ignored and failed to implement all commitments on conditions of service emanating from the 2019 round of negotiations.
In its position paper that saw public service salaries being increased by 5%, the government the government has also signalled its intention to renege on some of the commitments it had made. “Government aspires to look into all outstanding issues contained in the Labour Agreement signed between the Employer and recognised Trade Union on the 27th August 2019 and that it be reviewed, revised and delinked by both Parties with a view to agree on those whose implementation that can be realistically executed during the financial years 2022/23, 2023/24 and 2024/25 respectively,” the government said.
Furthermore, in addition to reviewing, revising and de-linking of the outstanding issues contained in the Collective Labour Agreement alluded to above and taking on a progressive proposal, government desires to review revise, develop and implement human resource policies as listed below during the financial year 2022/23,2023/24,2024/25
They include selection and appointment policy, learning and development policy, transfer guidelines, conditions of service, permanent and pensionable, temporary and part time, Foreign Service, expatriate and disciplinary procedures.
In their proposal paper, the unions which had proposed an 11 percent salary increase but eventually settled for 5% percent indicated that the government has not, and without explanation, acted on some of the key commitments from the 2019/2020 and 2021/22 round of negotiations. The essential elements of these commitments include among others the remuneration Policy for the Public Service.
The paper states that a Remuneration Policy will be developed to inform decision making on remuneration in the Public Service. It is envisaged that consultations between the government and relevant key stakeholders on the policy was to start on 1st September 2019, and the development of the policy should be concluded by 30th June 2020.
The public sector unions said the Remuneration Policy is yet to be developed. The Cooperating Unions suggested that the process should commence without delay and that it should be as participatory as it was originally conceived. Another agreement relate to Medical Aid Contribution for employees on salary Grades A and B.
The employer contribution towards medical aid for employees on salary Grades A and B will be increased from 50% to 80% for the Standard Option of the Botswana Public “Officers’ Medical Aid Scheme effective 1st October 2019; the cooperating unions insist that, in fulfilling this commitment, there should be no discrimination between those on the high benefit and those on the medium benefit plan,” the unions proposal paper says.
Another agreement involves the standardisation of gratuities across the Public Service. “Gratuities for all employees on fixed term contracts of 12 months but not exceeding 5 years, including former Industrial class employees be standardized at 30% across the Public Service in order to remove the existing inequalities and secure long-term financial security for Public Service Employees at lower grades with immediate effect,” the paper states.
The other agreement signed by the public sector unions and the government was the development of fan-shaped Salary Structure. The paper says the Public Service will adopt a best practice fan-shaped and overlapping structure, with modification to suit the Botswana context. The Parties (government and unions) to this agreement will jointly agree on the ranges of salary grades to allow for employees’ progression without a promotion to the available position on the next management level.
“The fan-shaped structure is envisaged to be in place by 1st June 2020, to enable factoring into the budgetary cycle for the financial year 2021/22,” the unions’ proposal paper states. It says the following steps are critical, capacity building of key stakeholders (September – December 2019), commission remuneration market survey (3 months from September to November 2019), design of the fan-shaped structure (2 to 3 months from January to March2020) and consultations with all key stakeholders (March to April 2020).
The unions and government had also signed an agreement on performance management and development: A rigorous performance management and reward system based on a 5-point rating system will be adopted as an integral part of the operationalization of the new Remuneration System.
Performance Management and Development (PMD) will be used to reward workers based on performance. The review of the Performance Management System was to be undertaken in order to close the gaps identified by PEMANDU and other previous reports on PMS between 1st September 2019 and 30th June 2020 as follows; internal process to update and revise the current Performance Management System by January 2020.
A job evaluation exercise in the Public Service will also be undertaken to among others establish internal equity, and will also cover the grading of all supervisory positions within the Public Service. Another agreement included overtime Management. The Directorate of Public Service Management (DPSM) was to facilitate the conclusion of consultations on management of overtime, including consideration of the Overtime Management Task Team’s report on the same by 30th November 2019.
A public health expert, Dr Edward Maganu who is also the former Permanent Secretary in the Ministry of Health has said that unlike many who are expressing shock at the population census growth decline results, he is not, because the 2022 results represents his expectations.
He rushed to dismiss the position by Statistics Botswana in which thy partly attributes the low growth rates to mortality rates for the past ten years. “I don’t think there is any undercounting. I also don’t think death rates have much to do with it since the excessive deaths from HIV/AIDS have been controlled by ARVs and our life expectancy isn’t lower than it was in the 1990s,” he said in an interview with this publication post the release of the results.
Preliminary results released by Statistics Botswana this week indicated that Botswana’s population is now estimated to be 2,346,179 – a figure that the state owned data agency expressed worry over saying it’s below their projected growth. The general decline in the population growth rate is attributed to ‘fertility’ and ‘mortality’ rates that the country registered on the past ten years since the last census in 2011.
Maganu explained that with an enlightened or educated society and the country’s total fertility rate, there was no way the country’s population census was going to match the previous growth rates. “The results of the census make sense and is exactly what I expected. Our Total Fertility Rate ( the average number of children born to a woman) is now around 2.
This is what happens as society develops and educates its women. The enlightened women don’t want to bear many children, they want to work and earn a living, have free time, and give their few children good care. So, there is no under- counting. Census procedures are standard so that results are comparable between countries.
That is why the UN is involved through UNFPA, the UN Agency responsible for population matters,” said Maganu who is also the former adviser to the World Health Organisation. Maganu ruled out undercounting concerns, “I see a lot of Batswana are worried about the census results. Above is what I have always stated.”
Given the disadvantages that accompany low population for countries, some have suggested that perhaps a time has come for the government to consider population growth policies or incentives, suggestions Maganu deems ineffective.
“It has never worked anywhere. The number of children born to a woman are a very private decision of the woman and the husband in an enlightened society. And as I indicated, the more the women of a society get educated, the higher the tendency to have fewer children. All developed countries have a problem of zero population growth or even negative growth.
The replacement level is regarded as 2 children per woman; once the fertility level falls below that, then the population stops growing. That’s why developed countries are depending so much on immigration,” he said.
According to him, a lot of developing countries that are educating their women are heading there, including ourselves-Botswana. “Countries that have had a policy of encouraging women to have more children have failed dismally. A good example is some countries of Eastern Europe (Romania is a good example) that wanted to grow their populations by rewarding women who had more children. It didn’t work. The number of children is a very private matter,” said Maganu
For those who may be worried about the impact of problems associated with low growth rate, Maganu said: “The challenge is to develop society so that it can take care of its dependency ratio, the children and the aged. In developed countries the ratio of people over 60 years is now more than 20%, ours is still less than 10%.”
The preliminary results show that Mogoditshane with (88,098) is now the biggest village in the country with Maun coming second (85,293) and Molepolole at third position with 74,719. Population growth is associated with many economic advantages because more people leads to greater human capital, higher economic growth, economies of scale, the efficiency of higher population density and the improved demographic structure of society, among many others.