High Court dismisses safari operator’s quota challenge
THE High Court has thrown out an urgent chamber application by Sitatunga Zimbabwe, a safari operator that was challenging Tsholotsho Rural District Council’s decision to award its annual quota to another company.
Glenulas Trading t/a Sitatunga Zimbabwe lost a tender to carry out safari hunts at Tsholotsho North concession area to Matupula Hunters.
Bulawayo High Court judge Justice Maxwell Takuva ruled that Sitatunga Zimbabwe failed to establish the prerequisites of an interdict.
Sitatunga Zimbabwe, which was represented by Mr Nqobani Sithole of Ncube Attorneys, sought a prohibitory interdict barring Matupula Hunters from carrying out hunting activities on the basis that it is unlawful.
The safari company argued that there was no transparency in the bidding process.
In papers before the court, Tsholotsho RDC, Matupula Hunters and the Procurement Regulatory Authority of Zimbabwe (PRAZ) were cited as respondents.
The dispute emanates from a tender flighted by Tsholotsho RDC in March this year inviting tenders for a hunting concession in an area under its jurisdiction, which was ultimately awarded to Matupula Hunters.
“I take the view that the applicant is a starryeyed busybody with absolutely no prima facie right. In its founding affidavit, the applicant does not assert that is has prima facie right, but it only stated that its worry is that animals, which are a public asset, will be hunted. The applicant clearly has not prima facie right to the animals or to hunt them,” said Justice Takuva.
He said Matupula Hunters was a successful bidder, which executed a binding contract with Tsholotsho RDC.
“Quite clearly, therefore the second respondent (Matupula Hunters) has prima facie right to hunt and the applicant does not. The reliance on the review panel’s decision is untenable because that decision is not binding on the second respondent,” Justice Takuva said.
The judge said Sitatunga Zimbabwe failed to assert what irreparable harm it would suffer in the event that an order was not granted.
“Surprisingly, the applicant is not praying for a mandatory interdict so that the tender process be re-run. Instead it is merely seeking to prevent second respondent from carrying out its business,” said Justice Takuva.
He said no well-grounded apprehension of irreparable harm has been established by Sitatunga Zimbabwe.
Justice Takuva said under the Public Procurement and Disposal of Public Assets Act, it was incumbent upon Sitatunga Zimbabwe to challenge the procurement process before Tsholotsho RDC by early May 2019, but the safari company chose otherwise.
He however, said Sitatunga Zimbabwe was at liberty to challenge the validity of the contract between Tsholotsho RDC and Matupula Hunters.
“However, Sitatunga Zimbabwe cannot seek to rely on the outcome of a process to which neither the applicant nor Matupula Hunters were parties. Clearly, the applicant has ample alternative remedies provided by the law. I find that the applicant has not established the requisites of an interdict and the application is dismissed with costs,” rued Justice Takuva
In his founding affidavit, Sitatunga Zimbabwe director, Mr Goldwater Lukuta, said the hunting concession under tender number TRDC 03/19 was set aside by the PRAZ on account of irregularities in the proceedings after another losing bidder, Lodzi Hunters, had expressed dissatisfaction with the process and procedures used by Tsholotsho RDC in determining the outcome.
Mr Lukuta argued that Matupula Hunters could not be allowed to continue with hunting activities following the decision by PRAZ to set aside the proceedings.
“On 18 and 19 June 2019, review panel set up by the PRAZ in terms of the Public Procurement and Disposal of Public Assets Act and operating in terms of the General Regulations (2018), as a procuring entity, determined the Lodzi Hunters versus Tsholotsho RDC matter by setting aside, in their totality, the procurement proceedings of the Tsholotsho North hunting concessions tender number TRDC 03/19,” he said.
Mr Lukuta argued that Tsholotsho RDC failed to appeal against the decision of the PRAZ’s review panel within the stipulated time in terms of the procurement law and regulations, a reflection that it was content with that decision.
He said Tsholotsho RDC trashed the decision of the PRAZ’s review panel by authorising Matupula Hunters to undertake hunting safaris in its concession area.
Both respondents, through their lawyers Joel Pincus, Konson and Wolhuter Legal Practitioners and Job Sibanda and Associates, opposed the application, arguing that the review panel’s decision that Sitatunga Zimbabwe sought to rely on was arrived at irregularly.
They said Tsholotsho RDC has since challenged it.
The respondents said the applicant failed to establish prima facie right when it alleged that it would suffer irreparable harm. “On the merits, the applicant has not established each of the necessary requirements for the relief it seeks,” said the lawyers. — @mashnets