Govt suffers another loss in the Ghanzi water tender

 

Justice Michael Leburu of the Court of Appeal denied the Ministry of Water and Human Settlement leave to appeal a case in which it had awarded a tender to Tawana Venture.

The Accounting Officer in the Ministry of Water and Human Settlement had sought leave to appeal against a High Court decision in favour of G4 Civils (Pty) ltd (1st Respondent), LandMark Projects (Pty) Ltd (2nd Respondent), Asphalt Botswana (Pty) Ltd (3rd Respondent), China Civil Engineering Construction Corporation Zhong Gan Engineering (4th Respondent) and Construction Corporation Botswana (Pty) Ltd (5th Respondent).

The application for leave to appeal was struck out, and the Applicants were ordered to bear the costs of the application.

According to the judge, the application for leave to appeal is not properly before the Court. He highlighted that, furthermore, there are no exceptional factors that impel the Court to exercise its discretion

and condone such non-compliance.

“It was further submitted by the Applicants that since the 4th and 5th Respondents have been granted leave to appeal to this Court, they should also be granted such leave, in the interest of justice. In my view, the fact that one litigant has been granted an order does not, ipso facto, enjoin the Court to grant the other litigant in the same matter the same order. Each litigant's case is singularly assessed on its unique merits or demerits and then determined accordingly,” Justice Leburu said.

Giving the background of the case in his ruling on Tuesday this week, Justice Leburu stated that “at the core of this ruling is an urgent application for leave to appeal to this Court the ruling of the High Court, handed down on 28 April 2025. The application for leave to appeal to the High Court was dismissed on 28 April 2025.”

On 24 February 2025, the High Court handed down its judgment, in terms of which the 1st, 2nd and 3rd Respondents (Tawana Joint Venture) were awarded a tender, namely Tender number POU/MLWA/DTS/NCOJANE Water Supply Works/158/09102023, being a works contract for Detailed Designs and Construction of Ghantsi South and Kgalagadi North Villages Water Supply Project.

He stated that the two Applicants herein, dissatisfied with the High Court’s decision, applied for leave to appeal on 14 March 2025. Justice Leburu pointed out that the need to bring an application for leave to appeal was predicated upon the fact that the High Court sat as an appellate Court, in the appeal from the decision of the Public Procurement Tribunal and therefore, in terms of Section 11(a) of the Court of Appeal Act, leave to appeal was a condition precedent and a requirement.

The High Court on 28 April 2025 dismissed the Applicants' application for leave but granted the 4th and 5th Respondents leave to appeal its ruling to the Court of Appeal. He said the Applicants, dissatisfied with the reasons anchoring the dismissal of their leave application, have approached this Court, seeking leave to appeal the decision of the High Court.

'On 14 May 2025, the 4th and 5th Respondents served the Applicants with their Notice and Grounds of appeal. Prompted and inspired by such service, the Applicants responded with a Notice of Opposition and a cross appeal. The 4th and 5th Respondents filed their Notice of Opposition to the cross appeal and raised a point of law to the effect that since the Applicants were denied leave to appeal, a fortiori, they do not enjoy a right to file a cross appeal, without leave,” Justice Leburu said.

He said, according to the Applicants, it would be in the interest of justice to grant them leave to appeal, more so that they are cited as Respondents in the cross appeal. He added that the Applicants have submitted that they have reasonable prospects of success on appeal, considering that the High Court awarded the tender to Tawana Joint Venture, despite their bid not meeting the qualifying criteria, particularly on issues of front-loading and back-loading.

The judge indicated that, on the balance of convenience, the Applicants averred that such a balance favours the granting of leave, given that leave has already been granted to the 4th and 5th Respondents.

“The application for leave to appeal is sternly opposed by all the Respondents. They have collectively raised three sharp-pointed legal points, namely: the application for leave to appeal is not properly before the Court in that it was brought outside the prescribed timelines set by the Rules; the application is not urgent, and the requirements for leave to appeal have not been satisfied,” Justice Leburu said.