The High Court has rejected the government’s request to appeal a judgment in a disputed P1.5 billion water tender case, despite admissions from a state attorney that a senior official’s actions amounted to illegality.
State attorney Abel Modimo conceded in court that the conduct of Dr. Kekgonne Baipoledi, former permanent secretary in the Ministry of Lands and Water Affairs, was “so bad and so improper” that it should warrant the cancellation of the entire tender.
The state sought to overturn a judgment by Justice Zein Kebonang, who awarded the lucrative water tender to Tawana Joint Venture. Kebonang ruled that the tender process had been compromised by serious misconduct on the part of government officials.
In his ruling, Kebonang said, “According to Mr. Modimo, his client (Baipoledi) acted in breach of all known procurement rules to benefit the third and fourth applicants — China Civil Engineering Construction Corporation and Zhon Gan Engineering & Construction Corporation (Botswana).”
The judge noted that Modimo made several key concessions on behalf of the state: That allegations of misconduct and bias against Baipoledi were valid; that the Attorney General supported all factual findings made by the Public Procurement Tribunal against Baipoledi; that China Civil and Zhon Gan did not meet the technical threshold and should have been disqualified; that only Tawana Joint Venture qualified for the award; and that although the tender cancellation should have been made by the procuring entity, the tribunal acted within its authority in doing so.
Justice Kebonang questioned whether Baipoledi and the Attorney General could now use their own unlawful conduct as a basis to avoid the tender outcome.
“I do not think so,” he said. “There is a long-standing common law principle that courts will not assist a party whose case is based on an immoral or illegal act.”
He said the state’s request to cancel the contract was rooted in Baipoledi’s own unlawful conduct and therefore could not stand on public policy grounds.
“As the applicants’ case is based on their own illegal acts, the law will not assist them and will leave them where their actions have placed them,” he said.
Justice Kebonang said he was “shocked” by the concessions made in court but had no reason to doubt them.
“These concessions, which are now under investigation by the Directorate on Corruption and Economic Crime (DCEC), seriously damage the applicants’ case and eliminate any realistic prospects of success on appeal,” he said.
The court also heard that Modimo claimed the substitution order, which handed the tender to Tawana, was invalid because the company allegedly did not meet the Price and General Items (P&Gs) threshold. However, the judge dismissed that argument, noting that no factual basis had been provided.
“In the absence of evidence supporting the P&G’s claim, there is no clear path to success on appeal,” Kebonangsaid. “And even if there were, it would be outweighed by the legal principle of finality in adjudication.”
The dispute stems from Tender No. POU/MLWA/DTS/NCOJANE WATER SUPPLY WORKS/0158/09102023, for the design and construction of water supply infrastructure in Ghanzi South and Kgalagadi North villages.
On Nov. 24, 2024, the Public Procurement Tribunal nullified Baipoledi’s decision to award the P1.8 billion contract to China Civil, citing irregularities. It ordered that the tender be canceled. Tawana Joint Venture challenged the tribunal’s ruling, and Kebonang awarded the contract to the company.
