[3]
In its judgment the High Court, per Mabuza J, held that “there was no legal and rational basis for the exercise of power by the Prime Minister/Cabinet in taking the decision to blacklist
the applicants” (appellants before us). The appellants challenged this finding of the Court on a variety of grounds. In essence they contended that
the directive was a lawful exercise of implied powers of the Executive as provided in the Swaziland Constitution and that the directive
was a rational exercise of public power. They also advanced as a ground of appeal the assertion that, contrary to the court’s
finding, the directive did not bind the recipients to observe the embargo on doing business with the respondents.
[4]
The facts of the matter are not in dispute. These are succinctly summarised by the High Court in
its judgment and I set this summary out below.
“(1) The Applicants are a group of companies who trade under the name of MPD Group of companies and carry on business at King Sobhuza
II Avenue, Mbabane. For the sake of brevity I shall refer to the MPD Group of Companies as the Applicants.
The Applicants have set out their business as follows:
Para 18.1The first Applicant (MPD Marketing and Supplies (Pty) Ltd carries on business as a trader, supplier and seller of equipment,
materials and products of all kinds, which it sources from the manufacturers or from the duly appointed distributors thereof, as
the case may be.
18.2
A substantial part of the first applicant’s business is the provision and supply to the Government of Swaziland or to parastatal
bodies in Swaziland of equipment, materials and other products or of services pursuant to contracts awarded to it in response to
tenders that have been submitted by it. Such tenders are submitted by it in response to calls for tenders by or on behalf of the
Government of Swaziland or such parastatals.
18.3
The work that has to be done in order to submit a tender is frequently substantial. The object is to source products or services of
sufficient and appropriate quality to meet the needs of the Government at a price that is competitive and is value for money. Representatives
of the first applicant have to identify a suitable manufacturer or supplier of such products or services and have to make the relevant
inquiries and conduct the relevant researches to be as sure as it is possible to be for all practical purposes that the manufacturer/supplier
is reliable and its products will have the requisite quality. In the nature of things such manufacturer/supplier is more often than
not a company or enterprise that is based outside of Swaziland. Negotiations have to be made with such companies or enterprises in
order to establish the most favourable prices and terms of payment. There is also need to establish and take steps aimed at ensuring
that there will be adequate after sales service, and such steps are taken.
18.4
Very frequently (if not invariably) the foregoing can best be achieved by establishing good and sound personal business relationship
with the personnel of such companies or enterprises. To achieve this takes time, effort and skill. Also, there have been instances
when the first applicant has recognized that, in order to be able to render a proper service in connection with the tenders it submits
or wishes to submit to the government, it is desirable and sensible to employ people with specialist skills and knowledge. When deemed
necessary the first Applicant has duly employed such persons. It is in the best interests of the Government of Swaziland and the
parastatals and of the public of Swaziland for whom such goods, materials, equipment and/or services are obtained that I and the
Representatives of the first applicant establish these things.
18.5
The first applicant has been submitting such tenders for more than ten years and has done so with a substantial measure of success.
The tenders that have been awarded to the applicants have all met the requirements of the Stores Regulations and the particular conditions
of the tender concerned. The award of these tenders to the first applicant has been on their merits.
18.6
In consequence of the success achieved by the first applicant in having government tenders awarded to it for the supply of goods and/or
materials and/or services to the government or parastatal bodies the situation has come about that the submission of tenders and
the fulfilment of tenders awarded to it has become its major source of income. It is thus crucial to the first applicant’s
well-being if not, indeed, its continued viability that it be allowed to continue submitting such tenders and that its tenders be
considered and evaluated on their merits in competition with such other tenders as may be submitted from time to time.
18.7
Accordingly the first applicant contends that it has a right to continue with such tendering business without any improper, irregular
or unlawful obstacles or impediments being put in its way. Alternatively, the first applicant has a legitimate expectation to be
allowed to continue to do so without any improper, irregular or unlawful obstacles or impediments being put in its way and that no
obstacles or impediments such as the decision by the Cabinet to ‘blacklist’ the first respondent being given a fair and
reasonable and proper opportunity to deal with any complaint that the Cabinet or any members thereof might believe that it has against
the first respondent or the deponent Mr. Dlomo personally.
18.8
The first applicant also contends that it is in the public interest that no unlawful or irregular obstacles or impediments be put
in the way of the first applicant continuing to submit such tenders and their being fairly considered and evaluated in terms of the
due process that governs the tendering process.
19.
What has been stated above about the first applicant also applies generally to the other applicants, the only material difference
being that each of them tends to specialize in the supply of a particular product or a particular category of products.
20.
The second applicant Supreme Emergency Vehicles (Pty) Ltd (SEV0) specialises in the supply of all kinds of vehicles (and spare parts
and accessories), including military vehicles, most of which it supplies through the tender process to the Government of Swaziland.
The second applicant has also been successfully tendering for Government contracts for more than ten years.
21.
The third applicant (MPD Pharmaceuticals (Pty) Ltd) is a relatively new company, and has recently submitted its first tender for the
supply of certain pharmaceutical goods to the Department of Health. This is a substantial tender. In order better to equip itself
to be able to submit a good tender on its merits the third applicant employed a qualified pharmacist.
22.
The fourth applicant (Masimphe Investments (Pty) Ltd) has previously been awarded tenders and pursuant thereto has supplied groceries
and the like to government departments and the seventh respondent (the Mbabane City Council) in terms of the prescribed tender process
of the Mbabane City Council, and pursuant to the contracts awarded has duly supplied such groceries. It also supplies other government
by tendering for those contracts in terms of the government tender procedure.”
It is evident from this summary of the facts that the decision of the Cabinet/Prime Minister to “ blacklist” the respondents
was calculated to cause them immeasurable harm. Indeed, this was common cause. The issues that arise and have to be determined are
whether:
1.
the decision to “blacklist” the respondents was binding on those who were responsible to take decisions concerning the
award of tenders or contracts; or was likely to be observed and implemented;
2.
the decision was lawful and enforceable as against the respondents.
[5]
The appellants have sought to justify their decision to issue the directive because, so they contend,
reasonable grounds existed for concluding that the respondents engaged in corrupt practices when they submitted tenders. The Cabinet
had read various reports of several commissions of enquiry into the operations of Government agencies. Some of these commissions
had found that the respondents were implicated in what was allegedly “ improper and irregular conduct.” The appellants
do not contend that it has been established that the respondents have been convicted of any criminal offence such as fraud or corruption.
Their actual assertion is that these reports “point to the fact that the applicants appear habitually to engage in irregular
conduct.”
[6]
The decision of the Cabinet to “blacklist” the respondents was communicated by the Prime
Minister in a variety of modes. A statement was released to the Press, a television interview was broadcast, and - presumably at
his behest - a directive was issued by the Ministry of Finance to all Chief Executives of category “A” Public Enterprises.
This directive reads as follows:-
“
MINISTRY OF FINANCE
CF 80A
10 April 2006
To all Chief Executives of Category A Public Enterprises
PEU CIRCULAR NO. 4/2006
BLACKLISTING OF MPD GROUP OF COMPANIES
