Permanent Secretary inthe Ministry of Finance & Economic Development Dr Wilfred recently announced Government intension to take the court out of tender legal disputes.
According to local media Dr Madlebe told Parliament Public Accounts Committee that government intents to review and amend the public procurement act with a view to introduce a clause that will allow public projects continue regardless of tender dispute any tender disputes or whatsoever.
” Those who will be unsatisfied with tender adjudication process and outcome will go on to seek redress at any of the appeal structures but that would not stop the project from continuing, if any irregularities are found that will be dealt with, but the project woud not be stopped ” – the Finance PS said.
A numeber of public projects have been stalled for years following complaints and tender outcome appeals by bidders, matters which ended up at courts of law.
In an interview with The Wrap this week upcoming attorney Bryan Kutlo Ramaphane said the move downplays the principle of seperation of powers.
“If one approaches court,the expectation is that issues must be ventilated and an appropriate order must be ,after consideration of all evidence,which may indicate collusion on government,must be given”
He further added ” i do not think ousting the power of the courts, which the amendment seem to be doing, is viable in any democratic setup”
Ramaphane went on to explain that the ammendment would cause more problems than solutions.” If someone approaches court for example citing gross irregularities on the part of the procuring entity,he seeks specific orders from court,e.g for the decision to be set aside.”
“So if the tender was continued despite grievances, it will limit the aggrieved party on the remedies available to him, for example if the court decides after 2 years that the process was dubious whilst it has already kickstarted, the court will not give remedies it wud ordinarily give but for that amendment.”
” Thirdly,it seems to impede one the cardinal rules of natural justice, the right to be heard. If government is threatening penalties to those seeking to vindicate their rights,does it not leave them in the periphery and not approaching court?”