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.
Former Umbrella for Democratic Change (UDC) Member of Parliament for Gaborone North, Haskins Nkaigwa has confirmed his departure from opposition fold to re-join the ruling Botswana Democratic Party (BDP).
Nkaigwa said opposition is extremely divided and the leadership not in talking terms. “They are planning evil against each other. Nothing much will be achieved,” Nkaigwa told WeekendPost.
“I believe my time in the opposition has come to an end. It’s time to be of value to rebuilding our nation and economy of the country. Remember the BDP is where I started my political journey. It is home,” he said.
“Despite all challenges currently facing the world, President Masisi will be far with his promises to Batswana. A leader always have the interest of the people at heart despite how some decisions may look to be unpopular with the people.
“I have faith and full confidence in President Dr Masisi leadership. We shall overcome as party and nation the current challenges bedevilling nations. BDP will emerge stronger. President Masisi will always have my backing.”
Nkaigwa served as opposition legislator between 2014-2019 representing Botswana Movement for Democracy (BMD) under UDC banner. He joined BMD in 2011 at the height public servant strike whilst Gaborone City Deputy Mayor. He eventually rose to become the mayor same year, after BDP lost majority in the GCC.
Nkaigwa had been a member of Botswana National Front (BNF), having joined from Alliance for Progressives (AP) in 2019.
Botswana has received assistance worth over P100 million from Japanese government since 2019, making the latter of the largest donors to Botswana in recent years.
The assistance include relatively large-scale grant aid programmes such as the COVID-19 programme (to provide medical equipment; P34 million), the digital terrestrial television programme (to distribute receivers to the underprivileged, P17 million), the agriculture promotion programme (to provide agricultural machinery and equipment, P53million).
“As 2020 was a particularly difficult year, where COVID-19 hit Botswana’s economy and society hard, Japan felt the need to assist Botswana as our friend,” said Japan’s new Ambassador to Botswana, Hoshiyama Takashi.
“It is for this reason that grants of over P100 million were awarded to Botswana for the above mentioned projects.”
Japan is now the world’s fourth highest ranking donor country in terms of Official Development Assistance (ODA).
From 1991 to 2000, Japan continued as the top donor country in the world and contributed to Asia’s miracle economic development.
From 1993 onwards, the TICAD process commenced through Japan’s initiative as stated earlier. Japan’s main contribution has been in the form of Yen Loans, which are at a concessional rate, to suit large scale infrastructure construction.
“In Botswana, only a few projects have been implemented using the Yen Loan such as the Morupule “A” Power Station Rehabilitation and Pollution Abatement in 1986, the Railway Rolling Stock Increase Project in 1987, the Trans-Kalahari Road Construction Project in 1991, the North-South Carrier Water Project in 1995 and the Kazungula Bridge Construction Project in 2012,” said Ambassador Hoshiyama.
“In terms of grant aid and technical assistance, Japan has various aid schemes including development survey and master planning, expert dispatch to recipient countries, expert training in Japan, scholarships, small scale grass-roots program, culture-related assistance, aid through international organizations and so on.”
In 1993, Japan launched Tokyo International Conference on African Development (TICAD) to promote Africa’s development, peace and security, through the strengthening of relations in multilateral cooperation and partnership.
TICAD discuss development issues across Africa and, at the same time, present “aid menus” to African countries provided by Japan and the main aid-related international organizations, United Nations (UN), United Nations Development Programme (UNDP) and the World Bank.
“As TICAD provides vision and guidance, it is up to each African country to take ownership and to implement her own development following TICAD polices and make use of the programmes shown in the aid menus,” Ambassordor Hoshiyama noted.
“This would include using ODA loans for quality infrastructure, suited to the country’s own nation-building needs. It is my fervent hope that Botswana will take full advantage of the TICAD process.”
Since then, seven conferences where held, the latest, TICAD 7 being in 2019 at Yokohama. TICAD 7’s agenda on African development focused on three pillars, among them the first pillar being “Accelerating economic transformation and improving business environment through innovation and private sector engagement”.
“Yes, private investment is very important, while public investment through ODA (Official Development Assistance) still plays an indispensable role in development,” the Japanese Ambassador said.
“For further economic development in Africa, Japan recognizes that strengthening regional connectivity and integration through investment in quality infrastructure is key.”
Japan has emphasized the following; effective implementation of economic corridors such as the East Africa Northern Corridor, Nacala Corridor and West Africa Growth Ring; Quality infrastructure investment in line with the G20 Principles for Quality Infrastructure Investment should be promoted by co-financing or cooperation through the African Development Bank (AfDB) and Japan.
Japan also emphasized the establishment of mechanisms to encourage private investment and to improve the business environment.
According to the statistics issued by Japan’s Finance Ministry, Japan invested approximately 10 billion US dollars in Africa after TICAD 7 (2019) to year end 2020, but Japanese investment through third countries are not included in this figure.
“With the other points factored in, the figure isn’t established yet,” Ambassador Hoshiyama said.
The next conference, TICAD 8 will be held in Tunisia in 2022. This will be the second TICAD summit to be held on the African continent after TICAD 6 which was held in Nairobi, Kenya, in 2016.
According to Ambassador Hoshiyama, in preparation for TICAD 8, the TICAD ministerial meeting will be held in Tokyo this year. The agenda to be discussed during TICAD 8 has not yet been fully deliberated on amongst TICAD Co-organizers (Japan, UN, UNDP, the World Bank and AU).
“Though not officially concluded, given the world situation caused by COVID-19, I believe that TICAD 8 will highlight health and medical issues including the promotion of a Universal Health Coverage (UHC),” said Hoshiyama.
“As the African economy has seriously taken a knock by COVID-19, economic issues, including debt, could be an item for serious discussion.”
The promotion of business is expected to be one of the most important topics. Japan and its partners, together with the business sector, will work closely to help revitalize private investment in Africa.
“All in all, the follow-up of the various programs that were committed by the Co-Organizers during the Yokohama Plan of Actions 2019 will also be reviewed as an important item of the agenda,” Ambassador Hoshiyama said.
“I believe that this TICAD follow-up mechanism has secured transparency and accountability as well as effective implementation of agreed actions by all parties. The guiding principle of TICAD is African ownership and international partnership.”
Directorate on Intelligence Services (DIS) Director General, Brigadier Peter Magosi is said to be hell-bent and pushing President Mokgweetsi Masisi to reshuffle his cabinet as a matter of urgency since a number of his ministers are conflicted.
The request by Magosi comes at a time when time is ticking on his contract which is awaiting renewal from Masisi.
This publication learns that Magosi is unshaken by the development and continues to wield power despite uncertainty hovering around his contractual renewal.