standards. The tender procedure is very important as it deals with the allocation for state purposes of very large public funds. The
public has a real interest in the procedure. Bearing in mind the aforegoing the procedure cannot be allowed to be corrupted, however
unwittingly. A Court would in my opinion protect the procedure and actions resulting in one, some or most of the tenders not being
dealt with fairly would be reviewable. In doing so, a court would not be interfering with the freedom of the Government to choose
its commercial partners, for I am not talking about who is to be chosen. If the chosen procedure is implemented as envisaged under
its terms, fairly and uniformly to each tender and tenderer this will legitimise the chance of the tenderer which choice is an administrative
action, and which in my view a court of law would not interfere. To be legitimate the chosen procedure must be adhered to and applied
to each tender fairly and unfairly."
The learned Judge upheld the review application in the
first case and dismissed it in the second.
There are some passages in the above judgment which
might possibly suggest that the issue of the identity of the
successful tenderer cannot be the subject of review. In my view
this is not so and the issue of the identity of the supplier
may in appropriate circumstances form the subject of a review.
Because there is no statutory provision laying down the limits
of activity of the CTB it is not possible to approach the matter
upon the straightforward basis of ultra vires. Nor do
12 I think that any purpose will be served by approaching the
problem of intervention by the Court as if contractual
principles can be applied and the right of the Court to
intervene determined by considering whether a Court should or
should not intervene by assuming that a contract had been
concluded. A contract, if any, comes into being only after
the CTB has decided to accept a particular tender. Until that
stage is reached the CTB is merely acting on behalf of the
State or a particular section of it in order to bring about
a contractual relationship with a supplier of its choice. If
the Court intervenes in the present case, for example, it will
not be concerning itself with a private transaction which it has
no right to meddle with. It will be regulating the behaviour
of a public body the function and importance of which are set
out in the passage from the judgment of Nganunu J. quoted above
(cf G&L Builders, cc. v McCarthy Contrators (Pty) Ltd 1988
(2) SA 243 SECLD 248 citing Wentzeler
Gemeensontwikkelinosraad en Andere 1983(3) SA 703 (T) ).
In my view the proper approach to the present kind of
13 proceeding is simply to consider whether the factual allegations
which are made and what is sought by the application
are
within the general ambit of matters which are reviewable
acts
by public bodies. Lord Diplock in CCSU V Minister for
the
Civil Service (supra) at p.949 f said:
"To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons)
other than the decision-maker, although it may affect him too. It must affect such other
person
by altering rights of that person which are
enforceable by or against him in private law..."
Solar Power in the present case claims that it has an
enforceable right to an award of part at least of the contracts
of which it has been deprived by the irregular manner in
which its case was considered by the CTB. The next question
concerns the limits of the right of interference by the
Courts. I set out below the way the matter has been
approached by the courts of England and South Africa. Lord
Diplock in the CCSU case (supra) where the question of issue
was whether an act in the exercise of the Royal Prerogative
could be the subject of review proceedings found that it could
and proceeded to set out the three categories of situation in
14 which this would be possible. He said at p 950(A):-
"My Lords, I see no reason why simply because a decision-making power is derived from common law and not a statutory source it
should, for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when, without re-iterating any analysis of
the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative
action is subject to control by judicial review. The first ground I would call illegality, the second "irrationality" and
the third "procedural impropriety" . That is not to say that further development on a case by case basis may not in course
of time add further grounds".
The speech of Lord Diplock was concurred in by Lord
Scarman (p948) and Lord Poskill (p956).
It seems to me that in the present case we are dealing with a possible case of "irrationality" or, in the terminology of
Lord Greene in Associated Provincial Picture Houses Ltd v Wednesburv Corporation [1947] 2 A11ER 680 at 682, "unreasonableness".
In South Africa, dealing with common law review in relation to the Stock Exchange, Corbett J.A., as he then was, said at p. 152 :-
"Broadly, in order to establish review grounds it must be shown that the president failed to apply his
15 mind to the relevant issues in accordance with the behests of
the statute and the tenets of natural justice
Such
failure may be shown by proof inter alia that the decision
was arrived at arbitrarily or capriciously or mala fide or
as a result of unwarranted adherence to a fixed principle or
in order to further an ulterior or improper purpose; or
that the president misconceived the nature of the discretion
conferred upon him and took into account irrelevant
considerations or ignored relevant ones; or that the decision
of the president was so grossly unreasonable as to warrant the
inference that he failed to apply his mind to the matter
in the manner aforestated " (Johannesburg Stock Exchange v
Witwatersrand Nigel Ltd 1988 (3) SA 132 (A)).
Whatever system of law is looked to and whatever pigeon
hole the matter placed in, the relevant question is: was the
basis of the refusal to accept Solar Power's tender a
reasonable one and one which fell within the ambit of CTB's
proper function? This matter is reviewable.
It seems to me that the decision to refuse Solar
• .
16 Power's bid should be dealt with by deciding whether the
basis of the refusal was something which the CTB could take and
should have been taken into consideration or whether the
power which it had been given was circumscribed and did not
extend to matter unrelated to the product which was being
offered in response to the advertisement for tenders by
Boipelego or to the suppliers themselves. In other words it
is a question of "irrationality" or "unreasonableness" in
the broad meaning of the latter term.
I will not attempt to define what facts may or may not be
germaine to a consideration of competing tenders for the supply
solar heaters. It is preferable, I think, to answer the one
question of whether, where there are competitive tenders for
the supply of solar heaters, the fact that one potential
supplier did in the past supply a Department of State with
other heaters which were defective is relevant to the TCB's
consideration of the tenders or whether the TCB should have
confined its attention to the product offered by each tender
and matter directly associated with it, such as date of
•' ft Vrv T . "
* -—!
17 delivery, price, the quality of the workmanship and whether
the equipment is manufactured in Botswana or elsewhere.
It seems to me that the reliability of other equipment
supplied by the same supplier is relevant and may be a reason
for refusing the tender of that particular supplier. A supplier
who sees fit to supply defective goods cannot be relied upon
not to do so in the future. Doubts could arise as to the design
capability of a supplier or as to the quality of the materials
used. It might go as far as to reflect upon the integrity of
the supplier who sells equipment which is defective. In the
present case Solar Power had made at least five hundred solar
heaters of the new model at the time tenders were called for.
Some had been installed. But this had only been over a
period of two years. What defects might manifest themselves
when they have been in operation for a longer period, it is not
possible to say.
Mention was made of the fact that there were guarantees and
undertakings required. But disputes concerning guarantees and
undertakings are, if possible, to be avoided and one way of
ft t
i—?
.
__
18 doing this is to identify a supplier with a product which has
stood the test of time and in respect of which there have been
no disputes. It seems to me that it is not unfair to Solar
Power to require that, in one way or another, it should be
required to re-establish its reputation as a supplier of
reliable equipment and that, until it has done so, the CTB
is entitled to accept tenders of other suppliers.
Gyeke-Dako J. in his judgment came to the conclusion
that it was wrong to take into account the fact that Solar
Power had previously installed defective equipment in the
form of the 1990 model. It is upon this issue which we
disagree with him.
In regard to costs it was argued that Solahart, because it did not oppose the application at the outset but left it to the Attorney
General, should not be awarded costs. I do not think that this conclusion has merit especially as Solar Power sought to attach some
significance to the absence of initial opposition by the successful tenderer.
In the result the appeal is upheld and the order of the High
19 Court of the 2nd September, 1994 is set aside. Solar Power is
ordered to pay the costs of the Attorney General and Solahart
in both Courts.
GIVEN AT LOBATSE THIS.?\..DAY OF JANUARY, 1995.
SCHREINER [JUDGE OF APPEAL]
I agree
A.N.E. AMISSAH
[JUDGE OF APPEAL]
I agree
LORD COWIE [JUDGE OF APPEAL]
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