Billy Ntaote
Construction companies, construction associations, and human rights organizations have launched a constitutional case challenging the constitutionality of fees imposed on tenderers who wish to appeal tender award decisions to the Public Procurement Tribunal.
These fees come with the newly promulgated Public Procurement Act of 2023 in Schedule 3.
Unik Construction Engineering Pty. Ltd, along with its joint venture partners Qingjian Group Co. Ltd, Nala Group of Companies Pty Ltd, and Maphoi Construction Pty Ltd has teamed up with the Association Of Contractors In Lesotho and the Transformation Resource Centre to demand that fees charged for appealing with tribunal be declared unconstitutional. This case is tied to their fight to have the M800 million cancer treatment facility tender, awarded to Plem Construction, nullified.
Unik is leading the legal challenge. The company is awaiting the appointment of tribunal members to appeal the decision of the Principal Secretary in the Ministry of Health, who awarded the contract to Plem Construction. The High Court, in June 2024, ruled that the case should be heard urgently by the tribunal once it is appointed.
However, before Unik’s appeal can proceed, they are required to pay a fee of 2% of the contract value—around M16 million—just to have the case heard. Unik has now approached the Constitutional Court to have these appeal fees declared unconstitutional and to prevent the company from paying the 2% fee.
Unik argues that these fees violate their right to equality and access to justice, and they believe it amounts to the commercialization of justice. The company seeks an order prohibiting the implementation of these fees by the tribunal and its agents.
Unik’s managing director Gang Wang said the basis for lodging the constitutional petition is the requirement for payment of fees upon a complainant launching an appeal against the decision of the principal secretary.
The Public Procurement Act of 2023 introduces two tiers of adjudication of complaints of tender awards.
The law provides that these two tiers of adjudication must be exploited before launching a case before the traditional court of law.
The first port of call is the Principal Secretary or Chief Accounting Officer of the ministry and then, subsequently, the procurement tribunal.
The unconstitutional feature of this law that Unik and its co-applicants challenge is that when an aggrieved tenderer launches a case before the Principal Secretary, no fees are payable.
On the other hand, the following fees are imposed by the law for an appeal to the procurement tribunal.
Tseliso Thamae, president of the Civil Mining and Building Constructors Association, said the constitutional case is in the interests of his organization’s members as the nature of reliefs sought to intertwine with the interests and rights of its members.
Thamae says his organization’s members participate in public procurement in different spheres.
“Our general membership of traders and or commercial enterprises are deeply affected by this newly promulgated law, which aims to shrink public procurement for specified companies that have the economic muscle to pay the grossly unconscionable fees imposed by law.
“In the construction industry, not many companies can afford to pay such fees, particularly if they are non-refundable.
“I make this affidavit in full support of all the issues raised in the anchor affidavit and plead with this Honourable Court to grant the main reliefs which have to do with the declarator that the imposition of fees at the rate as expressed in Schedule 3 does not pass the constitutional muster,” reads part of Thamae’s affidavit.
The Executive Director of the Transformation Resource Centre, Tsikoane Peshoane, added to Thaame’s sentiments, arguing that his organization is a voluntary organization that actively participates in public procurement over consultation services, amongst others.
Peshoane, in an affidavit supporting the construction companies’ case for the repeal of the fees, said, “Not all of the participants in public procurement are business enterprises, non-profit making organizations also play a part on public procurement, and it is inconceivable for them to be expected to pay the prescribed non-refundable fees even though they are not commercial enterprises per se.”
Peshoane reveals in his affidavit that the TRC has participated in several tenders to produce consultancy services with several public entities like the Independent Electoral Commission (IEC) for various programs, and the expectation that it must pay the fees prescribed renders this entity ineligible to participate in public procurement at all.
“It is a non-profit making organization, and the expectation that it pays fees prescribed under the impugned schedule 3 attracts more or less the same constitutional breaches expressed in the anchor affidavit. It thereby has an interest in motivating and supporting the reliefs sought by the 1st applicant [Unik] to this extent.
“The issues raised in this litigation are of grave national importance and require deep-seated introspection and reflection.
“Public Procurement is the bedrock of development of a country, and if the launching of appeals is restricted with grossly unconscionable fees which do not pass the constitutional muster, this may yield deleterious effects for the developing economy of the Kingdom of Lesotho,” said Tsikoane in an affidavit.
The post Constitutional Court petitioned against the commercialization of justice appeared first on MNNCIJ.
[[{“value”:”Billy Ntaote Construction companies, construction associations, and human rights organizations have launched a constitutional case challenging the constitutionality of fees imposed on tenderers who wish to appeal tender award decisions to the Public Procurement Tribunal. These fees come with the newly promulgated Public Procurement Act of 2023 in Schedule 3. Unik Construction Engineering Pty. Ltd,…
The post Constitutional Court petitioned against the commercialization of justice appeared first on MNNCIJ.”}]]
MNNCIJ