BHUNU JA: This is an appeal against the entire judgment
of the Administrative Court in which it dismissed the appellant's appeal
against the award of a tender to the second respondent, Indra Sistemas SA PL by
the first respondent, the State Procurement board.
The
first respondent was however wrongly cited, both in the court a quo and in this court as the “Principal
Officer State Procurement Board” The correct citation ought to have been the “State
Procurement Board” duly incorporated as such in terms of the Procurement Act [Chapter 22:14]. The record of
proceedings has since been amended by consent to reflect the correct party.
Despite the wrong citation, the first respondent was properly represented at
every stage of the case. The amendment is therefore proper as it does not cause
any prejudice to anyone. .
The
third respondent did not file heads of argument opting to abide by the court's
decision as a neutral party. At the close of argument we allowed the appeal in
terms of the appellant's amended prayer with reasons to follow. The court's order was couched in the
following terms:
“WHEREUPON after reading
documents filed of record and hearing counsel,
IT IS ORDERED THAT:
1.
The
appeal be and is hereby allowed with costs against 1st and 2nd
respondents jointly and severally the one paying the other to be absolved.
2.
The
judgment of the court a quo be and is
hereby set aside and substituted with the following:
(i)
It
is hereby declared that the 2nd respondent failed to comply with the
mandatory requirements of tender No. CAAZ/DANTS/1/13 for the supply and
installation of an air Traffic Control Radar Surveillance System.
(ii)
Accordingly, the award of tender No.
CAAZ/DANTS/1/13 for the supply and installation of an Air traffic Control Radar
Surveillance System to the 2nd respondent be and is hereby set
aside.
(iii)
Any
contracts entered between the 2nd and 3rd respondents
pursuant to the award of tender No. CAAZ/DANTS/1/13 to the 2nd
respondent be and is hereby declared invalid and is hereby set aside.
(iv)
The
certificate issued in terms of section 44(2) (b) of the Procurement Act
[Chapter 22:14] by the 3rd respondent pursuant to the award of
tender No. CAAZ/DANTS/1/13 to the 2nd respondent be and is hereby
set aside.
(v)
The
matter is hereby remitted to the State Procurement Board for the invitation of
a fresh tender.
(vi)
The
1st and 2nd respondents shall pay costs of this appeal,
jointly and severally, the one paying and the other to be absolved.”
I
now proceed to provide the reasons for judgment. The factual background to this
appeal is by and large common cause, raising no material dispute of facts.
The
State Procurement board hereinafter referred to as the SPB, is an administrative
body established in terms of s 4 of the Procurement Act [Chapter 22:14]. Its functions are set out in s 5 of the Act as
follows:
“(1) Subject to this Act, the functions of
the State Procurement Board shall be—
(a)
to conduct
procurement on behalf of procuring entities, where the procurement is of a
class prescribed in procurement regulations; and
(b)
to supervise
procurement proceedings conducted by procuring entities, in order to ensure
proper compliance with this Act; and
(c)
to initiate
investigations in terms of section forty-six and take action pursuant
thereon in terms of section forty-seven; and
(d)
to perform any
other function that is conferred or imposed on the State Procurement Board by
or in terms of this Act or any other law.
(2) Except as otherwise provided in this Act, the
State Procurement Board shall not be subject to the direction or control of any
person or authority in the exercise of its functions under this Act.”
Any person aggrieved by the decision of the State
procurement Board or any procurement entity in the exercise of its functions has
the right of appeal to the Administrative Court in terms s 43 of the Act.
Appeals from the Administrative Court in turn lie to this court in terms of
s 20 of the Administrative Court Act [Chapter
7:01].
On 13 December 2013 the SPB in the course of duty
invited tenders for the supply and installation of primary and secondary
surveillance air traffic control radar systems for purchase by the third
respondent. The radar systems were to be installed at various strategic
positions covering the entire Zimbabwean airspace.
Both the appellant and the second respondent
participated in the tender proceedings. The tender was won by the second
respondent much to the chagrin of the appellant, hence the appeals to the
Administrative Court and ultimately to this court. .
Section 4 of the invitation to tender documents provided
for mandatory requirements to be fulfilled by tenderers on pain of
disqualification for noncompliance under s 5 as read with s 9 thereof. The
three sections provided that:
“SECTION
4: MANDATORY REQUIREMENTS.
Bidders are required to submit the
following requirements, which are mandatory. Failure to submit shall lead to
disqualification.
…
(g) The manufacturer of the PSR/MSSR systems
to be supplied must have a track record of at least five years in supplying
Radar systems at International Civilian airports and used for ATC operations.
The details of the reference sites shall be given in the bid.
…
(l) The tenderer shall provide option/s for
Financial Funding Proposal and Outright purchase systems being offered in this
tender. This funding proposal shall indicate the total cost of providing
financing and shall include a five year repayment plan; and the financial
proposal shall indicate the monthly repayment.
SECTION 5: CAUSES FOR DISQUALIFICATION
The
following are reasons for tender disqualification:
(a)
Prima facie evidence of collusion among
tenderers.
(b)
Incomplete submission of tender requirements.
(c)
Non-compliance to tender specifications.
(d)
Lack of trade references.
(e) Misrepresentation of facts in the submission.
SECTION
9: CRITERIA FOR TENDER VALUATION
The following criteria shall be used for
the evaluation of this tender. Tenderers who fail to fulfil the stated criteria
shall be disqualified:
1.
Compliance
to Mandatory Requirements in s 4.
…
9
Lowest price to specification.”
Upon assessing the various bids received the first
respondent produced an evaluation report to assess the credibility of each
bidder. In respect of the second respondent it made the following findings at
page 51 of the record of proceedings:
“FINDINGS ON
MANDATORY REQUIREMENTS
OPTION TO BIDDER
PROVIDING FINANCING
1
Indra Sistemas SA P/L
·
The
Bidder did not provide a bank guarantee from a registered commercial bank for
the funding proposal.
·
The
Bidder gave the following funding proposals:
(a)
Option 1
A
letter of a non-binding Letter of credit confirmation from Barclays bank in the
sum of 20, 000, 0000 Euro with a 12 months deferred payment as opposed to the
required 5 year and 10 year proposals.
(b)
Option 2
A letter of intention to participate in
the tender from Ecobank which does not state any amount being offered under
this funding proposal option.
(c) Option
3
A letter from Tamuka Group expressing
interest to provide insurance in support of the tenderer's bid. There is
however no amount which is being proposed under this option.
The bidder did not comply with all the
mandatory requirements of the tender under this option.”
The SPB having concluded that the second respondent
did not comply with all the mandatory requirements of the tender under the
above option went on to dubiously find at page 83 of the record of proceedings
that it nevertheless qualified to win the tender under the outright purchase
option when its bids did not comply with the minimum mandatory tender
requirements. That fake evaluation reads:
“FINDINGS
ON EVALUATION OF BIDS AGAINST CRITERIA
2.
Indra Sistemas SA P/L
·
The bidder did not
provide a bank guarantee from a registered commercial bank for the funding
proposal.
·
The
bidder offered a 12 months funding proposal which is against the required 5
year and 10 year funding proposals.
·
The
bidder qualifies for recommendation for award of tender on outright purchase
option.
·
The bidder does
not qualify for recommendation for award of tender on the 5 year and 10 year
funding proposals.
Although the Bidder met all technical
specifications of the tender, the Bidder did not provide the 5 and 10 year
funding proposals as required in the tender.
·
The
Bidder qualifies for recommendation for award of the tender on outright
purchase option”
It is needless to say that once the SPB had made the
valid finding that the second respondent had failed to comply with the
mandatory requirements of the tender, it was not within its power to change
goal posts and award the tender on other spurious grounds in breach of the
mandatory requirements.
The learned judge of the Administrative Court
therefore, misdirected himself and fell into grave error when he held that the
record of proceedings shows that the second respondent complied with all tender
requirements. There is no truth or validity in that finding as it goes against
the grain of evidence on record as amply demonstrated above. It appears that
the judge in the court a quo was also
misled by the fact that the second respondent's bid was the lowest. That
consideration was of no consequence in circumstances where the basic minimum
mandatory requirements were not met.
Confronted with the stark reality that that the second
respondent was invalidly awarded the tender in circumstances where it had
failed to comply with the minimum mandatory tender requirements, Mr Chimombe counsel for the first
respondent quite rightly and professionally recanted saying:
“We are not supporting the judgment. We
have noted the anomalies in the record. The Board will abide by the order of
this court. We abandon our heads of argument.”
But
not so for Mr Mazonde, counsel for the second respondent. Despite overwhelming
evidence staring him in the face, he steadfastly held onto his guns firing
blanks.
Although
he had no meaningful legal argument to proffer he fastened onto his puerile
appeal saying:
“I
stand by my heads of argument. Second respondent was the best bidder.”
When
the court pointed out that the issue was not whether his client was the best
bidder but whether it met the basic minimum mandatory requirements for the
tender he retorted:
“It
is difficult for me to say that all parties met the tender requirements. I
admit that some of the tender requirements were not met. On the question of
costs the 2nd respondent should be excused as it was just a party
which won a tender.”
“PATEL
JA: But you still persist with your
opposition
Mr
Mazonde: Yes.”
While parties and lawyers are entitled to have their
day in court, they must exercise that right responsibly with due care and
diligence not to abuse court process. It is rather unethical and an abuse of
court process for litigants and particularly lawyers to waste the court's
valuable time presenting dead unarguable cases in the vain hope that flogging a
dead horse will somehow resurrect it to life.
B.D. Crozier in his Legal Ethics, 2009 handbook
cautions against such subtle unbecoming behaviour at page 16 where he says:
“It is impossible to define
comprehensively what is meant by an abuse of court process, but in general terms it would take place
when the court's procedure is used by a litigant for a purpose for which it was neither intended nor designed, to
the prejudice or potential prejudice of another party to the proceedings. It may also take place when a litigant
institutes proceedings that are obviously unsustainable.
A legal practitioner must not abuse court
process e.g. he must not enter an appearance to defend when there is no
defence, and must not use court procedures to intimidate the other side or
delay matters. He should not file bogus pleadings. Needless to say he must not
deliberately alter court process for that usually amounts to forgery or fraud.”
(My emphasis)
On
that score, it is axiomatic that appeal proceedings were never intended or
designed to facilitate a hopeless fishing expedition in this court in the
futile hope of catching something in an empty pool. This is for the simple but
good reason that the appeal court has no remedy to offer in frivolous and
vexatious appeals. Thus, appeals of this nature are simply a waste of time and
money for everyone concerned.
The
courts frown upon that despicable type of conduct which is punishable by an
award of costs at the punitive scale. Thus where a legal practitioner institutes or
defends appeals with full knowledge that there are absolutely no reasonable
prospects of success, he or she might expect to bear the wasted costs
occasioned by his or her wrongful conduct de
bonis propriis.
Although lawyers have a
duty to their clients, their duty to the court is paramount as propounded by
MANGOTA J in Sergeant Mutasa C. 0477442S v
The Board President (Chief Superintendent Dube N) and Another HH – 9- 15 at
p 6 where he says:
“The
applicant's legal practitioner is an officer of the court. His duty is first
and foremost to no one else but the court. The oaths which he took when he was
admitted into the profession beckon him to always remain truthful with himself,
with the court, with fellow legal practitioners and with those whom he
represents in, and out of, court.”
Mr Mazonde's duty to court obliged him not to abuse court process by
defending the indefensible in a court of law. He also had a duty to advise his
client properly as per MAKONI J's observation in Base Minerals Zimbabwe (Pvt) Ltd and Another v Chiroswa Minerals (Pvt)
Ltd and Ors HH - 21 – 16 where the learned judge said:
“It
cannot be over emphasised that a lawyer has a duty to advise his clients
properly regarding the law as well as procedure. A lawyer owes a duty to the
court not to be complicit in instituting proceedings which amount to an abuse
of court process. See Ndlovu v Murandu
1999 (2) ZLR 341 (H) at pages 350 – 351.”
Lawyers
should take heed of that free legal advice. There is no conflict between a
lawyer's duty to court and to his client as the two duties are complementary
and geared towards achieving justice which is the primary aim and object of all
judicial proceedings. Had counsel correctly discharged his obligation in this
respect, a lot of time and expense could have been saved to the benefit of all
concerned.
We
are convinced that Mr Mazonde appears
to have negated his duty to give correct legal advice to his client and simply
pandered to the whims and dictates of his client's wishes. This is because when
asked whether he was not worried that failure to follow the correct tender
procedures in acquiring radar systems would endanger members of the public, he
retorted that he was, as he also travels by air.
It
is disturbing if not horrifying that counsel was prepared to sacrifice not only
his own safety but that of the entire traveling public and the nation at large
at the altar of expedience to pacify his client. Lawyers should not succumb to
pressure from their clients at the expense of justice and public interest. It
is for these reasons that we allowed the appeal and issued the order at the beginning
of this judgment. The second respondent and its counsel were fortunate that the
appellant did not seek costs at the punitive scale. They must however take
heed. Counsel for the applicant is warned not to repeat this type of deplorable
conduct.
ZIYAMBI JA: I agree
PATEL
JA:
I agree
Nyatombwa Mugabe
Legal Counsel, appellant's
legal practitioners.
Civil Division of
the Attorney General's Office, the 1st respondent's legal practitioners.
Scanlen
& Holderness, 2nd respondent's legal practitioners.
Chirimuuta & Associates, 3rd
respondent's legal practitioners.
