Wednesday, October 5, 2022

PPADB, Deputy PS regain their honour after Court of Appeal dismiss Jamali

The Court of Appeal has ordered that Public Procurement and Asset Disposal Board be allowed to continue with its process to adjudicate on a tendering process that if ultimately finalized would lead to offer of office space for a department under the Ministry of Finance and Development Planning.

The Court of Appeal said the process was “wrongly halted” when the High Court awarded the tender to Varsha Enterprises against Zambezi Motors sometime last year.

Varsha Enterprises is owned by Iranian born Saidi Jamali while Zambezi Motors is owned by Ishmael Nshakazhogwe.

The high stakes tender attracted public attention and caused a major outcry last year after a High Court ruled that senior Government officials be investigated for possible corruption.

It all started after PPADB approved a request by the ministry for authority to enter into pre-award negotiations with Zambezi motors.

Following that approval by PPADB, Varsha Enterprises approached the High Court to halt the negotiations.

But in a bizarre turn of events, the High Court judge, Justice Zein Kebonang went on a frolic of his own and effectively awarded the tender to Jamali’s Varsha enterprises.

The Court has now found all the actions by Justice Kebonang to have been wrong and misplaced.

“…it is unnecessary for this Court to resolve this dispute. In my view, the first hurdle to be overcome by Varsha in the review application was to establish that an award had been wrongly made to Zambezi. In my view no award of tender had been made at all. It follows that no substitution order could be made in such circumstances,” said Justice Foxcroft of the Court of appeal.

The Court of Appeal further set aside the investigation that Justice Kebonang had directed in respect of the Deputy Permanent Secretary and his evaluation team.

Additionally, the Court of Appeal said such an investigation of Government officials on the facts on record was “wholly misplaced and should never have been made.”

Equally misplaced, said Justice Foxcroft was the direction to the Registrar of the High Court to bring the judgment and its orders to the “attention of the Permanent Secretary to the President” as had been ordered by Justice Kebonang.

There was no basis on the record for these instructions, said Court of Appeal judge, Justice Foxcroft.

In the end the Court of appeal awarded the appeal to the ministry of finance and also to PPADB, with costs, including those of counsel.

All the orders of the High Court were set aside.

“The matter is remitted to PPADB, Ministry of Finance for the continuation and conclusion of the process wrongly halted in this matter.”

In His judgment the High Court Judge had shot down arguments by the PPADB advocate, Schalk Burger who he accused of trying to “stretch legal sophistry.”

Justice Kebonang had at the time further accused Burger of adopting an “unhelpful and mechanical approach” to the dispute.

“In my view, the issue before me is much wider than whether there was an adjudication and award of the bid. It extends to the question of whether a court can correct or set aside proceedings or decisions of a public body, where on the record of proceedings before it, such body has either failed or disregarded duties imposed upon it by statute or disregarded the important provisions of the statute and where the record points to implicit or complicity by it in or to acts of corruption,” said Justice Kebonang at the time.

The High Court Judge had further called out PPDB of being engaged in “potentially corrupt” tendering practices.

The judge had also referred a deputy permanent secretary in the Ministry of Finance and development planning as well as five other junior officers including from, PPADB to the Directorate on Corruption and Economic Crime for investigation on possible corruption.

He said PPADB had aided and abetted the breach of procurement law.

In agreeing to the PPADB and the ministry of finance, the Court of Appeal said there was nothing for the High Court to correct because no decision or action had been taken.

The Court of Appeal said contrary to the High Court, “it is clear that the award of the tender and contract were some way off.”

“Negotiations may result in an award to the “preferred” bidder but also may for various reasons not result in “success” for the preferred bidder,” said Justice Foxcroft of the Court of Appeal.


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