Tsholotsho Rural District Council v J Mambara N.O. and Others

In March 2019, the applicant (Tsholotsho Rural District Council) invited bids for the Tsholotsho North Hunting Concession Tender No. TRDC 03/19. Multiple entities submitted bids, including the 3rd respondent (Lodzi Hunters (Pvt) Ltd). A winner was announced on 24 April 2019. The 3rd respondent initially challenged the procurement on 14 May 2019 without proof of payment of security for costs, then again on 24 May 2019. On 3 June 2019, the 3rd respondent lodged an application for review with the Procurement Regulatory Authority of Zimbabwe (PRAZ - 2nd respondent). A Review Panel chaired by the 1st respondent sat on 18-19 June 2019 and issued a Determination setting aside the procurement proceedings. The Panel raised and decided the matter on an issue mero motu (Cabinet clearance for joint ventures) that was not raised by the parties in their submissions. The applicant's legal practitioner made a concession regarding this issue without consulting the applicant.

• Whether the 3rd respondent's notice of opposition substantially complied with Rule 233 of the High Court Rules 1971
• Whether the applicant was required to exhaust domestic remedies by appealing to the Administrative Court under section 77(1) of the Public Procurement and Disposal of Public Assets Act
• Whether the Review Panel acted ultra vires by raising mero motu an issue not raised by the parties and determining the matter on that basis
• Whether the 3rd respondent's application for review complied with section 74(1)(b) of the Public Procurement and Disposal of Public Assets Act regarding time limits

a) The purported review proceedings chaired by the 1st respondent in respect of tender TRDC 03/19 were declared nullified and set aside. b) The 3rd respondent was ordered to pay the costs of the application.

A Review Panel established under the Public Procurement and Disposal of Public Assets Act is bound by section 61(4) of the Public Procurement and Disposal of Public Assets (General) Regulations SI 5/2018 to confine its decision to issues raised by the parties in their submissions. A Review Panel acts ultra vires and irregularly when it raises mero motu an issue not raised by the parties and determines the matter on that basis. Review Panels are creatures of statute with limited powers, not courts of law. Section 77(1) of the Act confers only appellate jurisdiction on the Administrative Court, not review jurisdiction over Review Panel proceedings. The High Court retains its common law power to review administrative tribunals, codified in sections 26-28 of the High Court Act, which is not ousted by section 77(1). Applications for review under the procurement law must comply with statutory time limits (five days under section 74(1)(b)), and proceedings based on time-barred applications are legal nullities.

The court observed that the doctrine of substantial compliance applies to procedural rules like Rule 233, and that the interests of justice favor determining matters on merit rather than technicalities where no prejudice is shown. The court noted that the failure of the 1st and 2nd respondents to oppose the application amounted to a concession that their proceedings were flawed. The court also commented that the concession by the applicant's legal practitioner was bad at law as it related to an irregularity already committed by the panel itself, and that section 24 of the Interpretation Act does not give a Review Panel power to go outside issues raised by the parties. The court rejected the 3rd respondent's argument that the relief sought was inconclusive, noting that declaring proceedings a nullity and setting them aside constitutes substantive relief.

This case is significant in Zimbabwean administrative and procurement law for clarifying: (1) the limited scope of Review Panels established under the Public Procurement and Disposal of Public Assets Act to only consider issues raised by the parties; (2) the distinction between the appellate jurisdiction of the Administrative Court under section 77(1) and the inherent review jurisdiction of the High Court over administrative tribunals; (3) the strict time limits applicable to procurement review applications; and (4) the principle that administrative bodies are creatures of statute and must act within their prescribed powers. The judgment reinforces the High Court's inherent supervisory jurisdiction over administrative action and statutory tribunals.