Twenty Third Century (Private) Limited v Minister of Higher and Tertiary Education, Innovation Science and Technology Development N.O. and Procurement Regulatory Authority of Zimbabwe

The applicant previously challenged a tender (ZPCR29-2021) issued by ZIMDEF (Zimbabwe Manpower Development Fund, administered by the first respondent) for SAP software support services. The tender contained Clause 10 requiring bidders to hold a SAP licence. The applicant challenged this condition as restrictive and anti-competitive under s73 of the Public Procurement and Disposal of Public Assets Act. Despite a pending appeal, ZIMDEF awarded the tender to Tano Digital Solutions. The applicant successfully sought review in HC 1737/22, where the court set aside the review panel's decision on 26 July 2022 (judgment HH 506-22). On 9 September 2022, while the appeal regarding the SAP licence condition remained pending and undetermined, ZIMDEF advertised a new tender (ZPCR33-2022) for the same services. The applicant sought urgent relief to suspend and ultimately cancel this new procurement process, arguing it violated the Public Procurement Act and undermined the prior court judgment.

• Whether ZIMDEF should have been joined as a party to the proceedings
• Whether the application was properly before the court or should have followed the internal remedy procedure under the Public Procurement Act
• Whether the applicant had pleaded a cause of action
• Whether the first respondent acted unlawfully by initiating a new tender process (ZPCR33-2022) while an appeal concerning the previous tender (ZPCR29-2021) remained pending and undetermined
• Whether the new tender process violated s28(3) and s73-75 of the Public Procurement Act
• Whether costs on an attorney and client scale were appropriate

1. The points in limine raised under HC 6461/22 are dismissed. 2. The interim relief granted on 12 October 2022 is confirmed. 3. The procurement process initiated by the first respondent under reference Domestic ZPCR 33-2022 is cancelled and nullified. 4. The first respondent shall pay costs of the application on a legal practitioner and client scale.

A procuring entity cannot lawfully initiate a new tender process while a statutory appeal concerning a previous tender for the same services remains pending and undetermined, particularly where that appeal concerns the lawfulness of eligibility criteria such as restrictive licensing requirements. Such conduct violates ss28(3), 73, 74 and 75 of the Public Procurement and Disposal of Public Assets Act. The existence of an internal remedy under the Public Procurement Act does not oust the jurisdiction of the High Court where that remedy is not adequate, reasonable or effective, particularly where the statutory regime does not provide for suspension of the procurement process pending determination of challenges. Under r32(11) of the High Court Rules, a cause shall not be dismissed for non-joinder of parties, and where an entity operates through a trustee, the trustee may be properly cited. A cause of action consists of all material facts that must be pleaded to establish the relief sought.

The court expressed concern about the first respondent's apparent disregard for the law in proceeding with a new tender while an appeal remained unresolved, describing the opposition to the application as 'cynical' and 'most disingenuous.' The court observed that disregarding a statutorily sanctioned appeal process and proceeding with review while an appeal awaits decision is telling about the inadequacy of the internal remedy. The court noted it would be a 'mere academic exercise' to require the applicant to follow the internal remedy procedure under s73 again given that the previous appeal remained pending. The court emphasized that the statutory appeal process must be completed to bring the previous tender to a conclusion before initiating a new tender process.

This case affirms important principles of public procurement law in Zimbabwe. It establishes that procuring entities cannot circumvent statutory appeal procedures under the Public Procurement Act by initiating fresh tender processes while appeals remain pending. The judgment reinforces the principle in s28(3) that procuring entities shall not impose unduly restrictive eligibility criteria designed to reduce competition. It confirms that where internal remedies under the Public Procurement Act are inadequate or ineffective (particularly where they do not provide for suspension pending determination), applicants are not precluded from approaching the High Court directly. The case demonstrates judicial oversight of procurement processes to prevent abuse and ensure compliance with statutory procedures. It also provides guidance on when costs on an attorney and client scale are appropriate, particularly where a party demonstrates cynical disregard for lawful statutory processes.