China Jiangsu International Botswana has escalated its dispute with the Public Procurement and Asset Disposal Board (PPADB) and the Ministry of land Water Sanitation Service to the Court of Appeal.
China Jiangsu through its senior counsel John Peters is now seeking an expedited appeal against among others a decision by the High Court dismissing its application for lack of urgency.
It also wants to prevent the implementation of the agreement pending the determination of the appeal following a decision by the Ministry of purportedly conclude an agreement by issuing a letter of acceptance purportedly accepted by its rival Zhengtai Group Botswana.
In relation to the appellant’s (China Jiangsu International Botswana) prospects of, the High Court was correctly scathing of the communication from DIS which was the only justification for the unlawful conduct of the respondents,” said Peter.
The letter in question by DIS had advised the Ministry and PPADB to withdraw the tender from China Jiangsu as it was said to be involved in corrupt activities.
Peter argued that the public interest of allowing this litigation to continue and not come to final end through systematic delay lies in the following; the contract to the fourth respondent considered an additional P305 million, to allow court to determine disputes according to the rule of law, good and proper public governance and procurement matters.
The lawyer also stated that the public interest lies in preventing the abuse of intelligence services to further commercial interests of competitors and assert the constitutional and democratic nature of Botswana as a country that functions to the rule of law not the dictates memoranda of intelligence officials as in a police state.
In his affidavit, the managing director of China Jiangsu International Botswana Cui Wanglin states “While the appellant appreciates the need for the infrastructure development to move forward, this is further justification for expedited appeal.”
He said the alternative that is suggested by the respondents(PPADB and Ministry) is that the infrastructure needs justifies the unlawful withdrawal of the tender on the grant of a contract to the unsuccessful tenderer with the concomitant denial of the appellant of its rights to legal redress in the courts of Botswana.
The Public Procurement and Disposal Asset Board (PPADB) argued that should it be found that some public officers acted in bad faith to withdraw the tender and award to another contractor other than China Jiangsu International Botswana, the aggrieved company can still sue the state for damages. “There is still an alternative remedy for the appellant (China Jiangsu International Botswana,” said PPAD lawyer Tshiamo Rantao. He said when the PPADB exercise power it raises issues of good public governance and not only in the current case but in other cases.
Thapelo for the Attorney General Sifelani Thapelo said there was
nothing special about the situation that China Jiangsu International
Botswana finds itself in.
“The issue of Public Interest in this context speaks to the community which is the intended beneficiary. Their application is not about the public but selfish commercial interest,” said Thapelo.