Postnet Kgale View, Private Bag 351, Suite 287
T (+267) 31 88 784
F (+267) 31 88 798
Gaborone International Commerce Park
Plot 104, Moores Rowland, Unit 21
In a case that could prove hugely embarrassing for the government, Judge Dr. Zein Kebonang has ordered the Public Procurement and Asset Disposal Board (PPADB) to produce official documents that he evidently believes the latter is purposefully hiding.
Some time last year, the Department of Basic Education in what was then called the Ministry of Education and Skills Development invited companies to take part in a selective tender process to supply teaching and learning materials for government primary schools that offer reception classes. Some of those companies were Davona Investments, African Commodities and Assured Marketing. Though it had been identified as a prospective supplier, Green Line Office Supplies, was not invited to tender as its contact details could not be established. This information is from a savingram that was written by the Director of Basic Education on June 1, 2016 and addressed to the Chairperson of the Ministerial Tender Committee (MTC). This savingram is now at the centre of a case in which a fifth company, Kinder Educonsult, is questioning the outcome of the tender adjudication process.
The savingram reveals that as the procuring entity (PE), the Department of Basic Education ran a background check on the four companies it mentions, contacting the Registrar of Companies and Intellectual Property Authority (CIPA) which, in turn, confirmed “that the companies in question are duly registered with the authority.” The PE further “carried out an exercise to confirm the collection and or receipt of the invitation to tender (ITT) by the four companies. The exercise included telephone calls and physical visits with the process being superintended by someone referred to in the court papers as “the late Mr. Nkgau.” The savingram refers to notes that Nkgau recorded. As it turned out however, not one of the four companies submitted tenders. In his ruling, Justice Kebonang says that of the prospective bidders, only Kinder Educonsult submitted a responsive bid.
Having earlier agreed to a selective tendering process, the MTC changed its recommendation to open tendering. Unhappy with this turn of events, Kinder Educonsult unsuccessfully appealed to the PPADB and later the Independent Complaints Review Committee (ICRC). Still dissatisfied, the company approached the High Court with a review application, which requires the release of all documents relevant to a dispute. That was how the June 1 savingram (which was submitted by PPADB) came to occupy a central position in this matter. Rather than answer questions, the savingram raised them, primarily because it makes reference to annexures that were not enclosed. That is indeed what Justice Kebonang says in his ruling: “What is clear from the … savingram is that there were indeed eight annexures appended to it. Four of the documents referred to in the annexures were made available by [PPADB] to the applicant.”
Kinder Educonsult accuses the ICRC and PPADB of “concealing certain documents” which are important to its review application and that it only became aware of such documents after lodging its case. Those documents include the following: records of proceedings that led to the decision to start the tendering process afresh; the letter from CIPA; records compiled by the late Nkgau about his dealings with representatives of the four companies; an evaluation report from the Director of Basic Education to the MTC Chairperson, debriefing notes, minutes of a meeting “between OBS and Supplies Division” as well as the entire bundle of documents that the PE brought to that meeting.
A legal device known as discovery has taken centre stage in the unravelling of this matter. Discovery requires the adverse party to disclose information that is essential for the preparation of the requesting party’s case that the other party alone knows or possesses. In the context of the matter at hand, ICRC, PPADB and the MTC are required to favour Kinder Educonsult with all the information it needs to prepare its case. Explaining the theoretical underpinnings of this device, Kebonang noted: “The primary object of the law on discovery is to ensure that litigants disclose to each other all the relevant, non-privileged documents, whether that disclosure helps or hurts their respective cases, so that they each know the case they have to meet… withholding or destroying documents clearly subverts the judicial process and undermines the rule of law.’
Nothing that one would want to call dissension in the ranks has occurred but in her client’s defence, Manyoloi Seru told the court that in the exercise of its administrative adjudicative functions, the ICRC relies on documents submitted to it by PEs and the PPADB, that none such had been submitted and that the Committee was not aware that PPADB had submitted an incomplete record. She successfully argued that the court could not make a judgement against it.
Conversely, PPADB’s attempt to make the same argument was not as successful. Its lawyer, Busang Manewe, submitted that while the Board may not have had all the documents relating to the disputed tender, it nonetheless had sufficient information to render a decision. He further submitted that there was a dispute of fact over whether the Board received or was ever in possession of the documents in question. However, these and related arguments didn’t sway the court.
“I must say I had great difficulty in understanding the position taken by [PPADB]. The record of proceedings was discovered by it. Of the eight documents that the applicant sought discovered, [PPADB] discovered four. No affidavit was filed explaining where the rest of the documents were,” says Kebonang in his judgement before dropping a nuclear bomb that reduced PPADB’s case to a heap of rubble. “On an objective assessment of the evidence before me, I am satisfied that the documents do exist and are in the possession of [PPADB]”
Upon such conviction, the judge ordered PPADB to surrender the missing documents to the Registrar and Master of the High Court within 14 days – the deadline is December 14.