High Court strikes procurement law challenge off the roll

Source: The Herald – Breaking news.

 Justice Rogers Manyangadze, delivering the ruling, underscored the procedural requirements for constitutional litigation. Justice Rogers Manyangadze, delivering the ruling, underscored the procedural requirements for constitutional litigation.

Fidelis Munyoro-Chief Court Reporter

A legal bid by a Harare lawyer, Mr Naison Machingauta, to challenge the validity of a provision in the public procurement law, has been struck off the High Court roll.

The court found the application procedurally defective, citing critical deficiencies in its pleadings.

At the heart of the challenge lies subsection (9) of section 3 of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23].

The contested subsection, introduced through Statutory Instrument 156 of 2023 by President Mnangagwa, exempts certain public enterprises from the Act’s regulatory framework.

The challenge alleged that the provision contravened constitutional principles of transparency, fairness, and accountability, particularly those enshrined in sections 315, 195(2), and 298(1)(a) and (d) of the Constitution.

Mr Machingauta sought a declaration of unconstitutionality for the provision and requested the High Court to refer the matter to the Constitutional Court for confirmation.

President Mnangagwa, Finance, Economic Development, and Investment Promotion Minister Professor Mthuli Ncube, and Attorney-General Virginia Mabiza, cited as respondents, opposed the application on procedural and substantive grounds.

The respondents argued that the application lacked specificity and clarity, with Mr Machingauta failing to interpret or explain how the cited constitutional provisions were breached.

They contended that this failure placed an undue burden on the court to interpret the pleadings and connect them to the allegations.

Justice Rogers Manyangadze, delivering the ruling, underscored the procedural requirements for constitutional litigation.

He emphasised the necessity for precision and specificity in constitutional pleadings, noting that every cited constitutional provision must be individually interpreted and its alleged violation clearly outlined.

“A broad and conglomerate interpretation of the Constitution may not lead to a correct interpretation. Rarely is a word used superfluously in the Constitution,” he said.

The court found Mr Machingauta’s founding affidavit deficient, with attempts to clarify issues in subsequent documents such as the answering affidavit and heads of argument deemed inadequate to cure the defects.

Justice Manyangadze reiterated the principle that supplementary documents cannot substitute for a properly pleaded founding affidavit.

The doctrine of constitutional avoidance also played a significant role in the ruling. Justice Manyangadze highlighted the importance of exhausting remedies provided under subsidiary legislation before escalating disputes to constitutional litigation.