Appeals Court grants PPADB relief
Grants stay of High Court order execution for Tshesebe- Mosojane- Masunga road project
The Public Procurement and Asset Disposal Board ( PPADB), Landmark Projects and Van & Truck Hire have been saved by the Court of Appeal to have their appeal heard expeditiously and have the High Court order execution stayed pending appeal.
They had earlier suffered a blow in the court battle for the Upgrading of Tshesebe- Mosojane- Masunga Road after Justice Michael Leburu dismissed their application for a stay of execution. The application was launched before Justice Leburu of Gaborone High Court to stay or not to stay the execution of the Order of the 12th February 2021 pending appeal to the Court of Appeal.
It was brought by PPADB ( 1st Applicant), Attorney General ( 2nd Applicant), Landmark Projects ( Pty) ltd ( 3rd Applicant) and Van & Truck Hire ( Pty) ltd as 4th Applicant. Bango Trading ( Pty) ltd and Zebra Construction ( Pty) ltd who were also bidders in the controversial tender filed their notices to abide by the court decision.
The Applicants wanted a stay of execution of orders made earlier by Justice Leburu that the decision of the Independent Complaints Review Committee ( ICRC) to award and or to recommend the award of the tender No Work 7/ 17/ 18 for Upgrading of Tshesebe- Mosojane- Masunga Road and Access Road to Bituminous Standard is declared null and void; alternatively the decision of the ICRC to award and or recommend the award of the said tender to Landmark Projects and Van and Truck Hire is reviewed and set aside and the PPADB is ordered to forthwith award the tender to Cul De Sac ( Pty) ltd.
In his ruling over the stay of execution application Justice Leburu indicated that the Applicants have no reasonable prospect of succeeding at the Appeals Court.
He stated that this is borne from the fact that Landmark Projects unsatisfactory performance, on past and present performances, which was an essential requirement in the Invitation to Tender ( ITT), was conveniently ignored by the decision maker, and thus rendering such decision illogical and irrational.
Justice Isaac Lesetedi of the Court of Appeal turned the tables and ruled in favour of PPADB and others against Cul De Sac.
He said the application is based broadly in respect of prejudice and prospects of success. He said the greater the prejudice the weighter the swing of the pendulum in favour of the party so adversely affected.
“The harm of prejudice or irreparable harm is to be considered together with the consideration of whether or not the Applicant has shown prospects of success on appeal.
“Where the appeal is frivolous or vexatious or it has merely been launched with the intention not to reverse the judgement but for some indirect purpose, the stay will not be granted.
“In the application for an expedited hearing I have found that the Appellants have prospects of success on appeal. I have also found that Cul De Sac has not shown any substantial prejudice that it will suffer by granting of the order for an expedited hearing,” Judge Lesetedi explained.
He posited that upon granting an order for an expedited hearing of the appeals, such an order minimizes any prejudice which Cul De Sac suffer as a result of any order of stay pending the determination of the appeal.
According to Judge Lesetedi an application for expedited hearing falls under Rule 11 of the Court of Appeal Rules.
The Rules, he said, give the Court the discretion to condone or permit a departure from the Rules in the interest of justice in exceptional circumstances where good and substantial reasons are shown for the grant of such condonation or departure.
“Recently the Chief Justice issued a Practice Directive to the Judges of the High Court under Order 43 of the High Court Rules as recently amended under Statutory Instrument No. 1 of 2021.
“In the Directive projects cost overruns occasioned by delays arising from frequent legal challenges to tender awards, drain a lot of public resources from other pressing needs,” said Judge Lesetedi.
He added that the spirit of the Directive is another factor to consider whether or not the discretion to grant an expedited hearing should be exercised.
“The project in relation to this dispute has been delayed for several years. It started in 2016 when the tender was awarded to the previous contractor. That tender was subsequently terminated in 2018 and a new tender was floated to complete the project.
“The element of public importance or interest both on account of effects if the cost overruns on the public fiscus as well as the negative effect of the delay on the community is argued by the Applicants to constitute an exceptional circumstance,” he stated.
Earlier in his judgement, Justice Leburu explained “the Applicants, particularly Landmark Projects and Van and Truck Hire have alluded to the possibility of suffering irreparable harm and prejudice, if stay is not granted.
“I am unable to fathom any irreparable harm to be suffered, except selfserving financial motive, for the tender to be awarded to them. The project in question, being a development project has lagged behind since 2016. Any further delays will result in price escalation. There is also material on site, which is under threat from unlawfully asportation”.
According to the judge PPADB exhibited gross incompetence by its lopsided interpretation of the ITT, wherein it concluded that this was an ESP project, whereas it was not.
Such misguided interpretation, Judge Leburu said led to a flurry of appeals to the Independent Complaints Review Committee ( ICRC), which appeals caused further delays to the project.
“For this court to grant a stay of execution, pending the appeal, it would be tantamount to condoning an illegality, which the court has determined and made with respect to falsification of the ICRC Board Minutes.
“Interestingly, the ICRC has accepted and acquiesced in the damning finding by not appealing. Having regard to all the competing interests in this matter, the applicants have thus failed to stimulate and enthuse my discretion in favour of granting a stay of execution.
“Time is of the essence for this project to commence, without any further delays,” ruled Justice Leburu at the time.