Mashudu Netsianda, Senior Court Reporter
THE High Court has nullified the decision by the Procurement Regulatory Authority of Zimbabwe (PRAZ) to review the procurement proceedings emanating from the disputed elephant hunting concession tender awarded to Matupula Hunters by Tsholotsho Rural District Council two years ago.
The ruling by Bulawayo High Court judge Justice Maxwell Takuva follows an application by Tsholotsho RDC challenging the decision by PRAZ chairperson Joel Mambara to set aside its decision to award the tender to Matupula Hunters.
In March 2019, Tsholotsho RDC flighted a tender for a joint venture elephant hunting concession for Tsholotsho North constituency, which it eventually awarded to Matupula Hunters
However, a rival safari operator, Lodzi Hunters and Safaris expressed dissatisfaction with the process and procedures used by Tsholotsho RDC in determining the outcome and challenged the decision at the High Court.
Lodzi Hunters and Safaris also wrote to the (PRAZ), which ruled in its favour, arguing that the awarding of a joint hunting concession tender to Matupula Hunters in Tsholotsho North was illegal.
According to PRAZ, which is responsible for controlling and regulating the procurement processes of Government departments, ministries and parastatals, Cabinet approval must be sought in joint ventures of such a nature.
Mr Mambara, in his final determination following the sitting of a review panel, ruled that the procurement proceedings were riddled with gross irregularities and illegalities.
In its papers challenging the Mr Mambara’s decision, Tsholotsho RDC, which was represented by Mr Job Sibanda of Job Sibanda and Associates, cited PRAZ, its chairperson and Lodzi Hunters as respondents.
In its application, Tsholotsho RDC argued that the purported review proceedings chaired by Mr Mambara were grossly irregular and irrational.
“The decision upon which to set aside the procurement proceedings in question was made in a point that raised mero motu (out of mere impulse) by the panel itself. This vitiated the entire proceedings in that section 61 (4) of the Public Procurement and Disposal of Public Assets (General) Regulations SI 5 of 2018, clearly states that the decision of a review panel shall be confined to the issues raised by the application and the respondent’s reply,” argued Mr Sibanda.
“The other reason why applicant sought the nullification of the proceedings is that the Act upon which the application for review was filed provides that an application for must be filed within
five days of the challenge being lodged with a procuring entity. In this case, the application was filed by third respondent (Lodzi Hunters) on June 3, 2019, six days after lodging the challenge.”
Mr Mambara and PRAZ did not oppose the application.
Lodzi Hunters, which was represented by Advocate Perpetua Dube instructed by Ncube Attorneys, argued that Tsholotsho RDC was “forum shopping” by failing to exhaust domestic remedies provided by the Act.
“The argument here is that the applicant should have appealed to the Administrative Court instead of filing this application in this court. On the merits, it is also submitted that it was proper for PRAZ to raise a preliminary point mero motu since it concerned the legality of the proceedings,” she said.
“The applicant committed itself to the concession and it is bound by it. It is further contended that Lodzi Hunters’ challenge was timeous in terms of the procurement law and regulations.”
Adv Dube said nullifying the review panel proceedings does not resolve the underlying dispute.
Justice Takuva said the High Court has, at common law, power to review the proceedings of all administrative tribunals, both domestic and statutory in terms of sections 26 and 27 of the High Court Act.
He ruled that the review panel is not a court of law, but a creature of the statute whose powers are confined to revieing what has been raised in the papers by the parties.
“Therefore, the raising of issues by the panel in this case vitiated the proceedings making them irregular. In my view, section 24 of the Interpretation Act does not give panel power to go outside the issues raised by the parties,” said Justice Takuva.
He said the court did not find any merit in Lodzi Hunters ‘complaint that what Tsholotsho RDC sought in this case would not resolve the matter.
“It is hereby ordered that the purported review chaired by the first respondent (Mr Mambara) in respect of a tender carried out by the applicant under Tsholotsho North hunting concession tender number TRDC 03/10 be and are nullified. The third respondent shall pay the costs of this application,” ruled Justice Takuva.
Lodzi Hunters and Matupula Hunters are both legitimate holders of hunting permits in the Tsholotsho North and Tsholotsho South areas respectively. The two safari operators have been at loggerheads for years over hunting permits.
Lodzi and Matupula Hunters have been locked in a dispute over the hunting rights in Tsholotsho North for years.
In 2017, Matupula Hunters contested the decision by the local authority to give Lodzi Hunters a permit to conduct elephant hunting in the same area in which it has exclusive safari rights for five years for the purpose of raising funds for the construction of a football stadium.
In 2015, when the need to fund the construction of Tsholotsho Stadium arose, the local authority decided to give Lodzi permission to hunt in the whole of Tsholotsho district, including the area exclusive to Matupula Hunters.
Matupula Hunters engaged council to settle the matter, but to no avail, as the local authority, together with Lodzi, insisted that they had the right to bring hunters to shoot elephants in Tsholotsho, leading to the court dispute.
Over US$360 000 raised for the construction of a stadium through the sale of 60 elephants, each going for $18 000, which were in 2013 donated by the Environment, Water and Climate Change ministry then under Mr Saviour Kasukuwere, was allegedly stolen.