Twenty Third Century (Private) Limited v Zimbabwe Manpower Development Fund and Others

In October 2021, the 1st respondent (Zimbabwe Manpower Development Fund) published a tender notice inviting bids for the provision of SAP software support services (tender number ZPCR 29/2021). Both the applicant and the 3rd respondent submitted bids. On 9 November 2021, before results were released, the applicant challenged a condition of the tender (clause 10) which required bidders to hold a SAP licence, arguing it was restrictive, unreasonable and anti-competitive under section 73(1) of the Public Procurement and Disposal of Public Assets Act. The applicant requested suspension of the tender closing period and removal of the SAP licence requirement. Despite the pending challenge, the 1st respondent awarded the tender to the 3rd respondent on 9 December 2021. The applicant sought a determination by the 2nd respondent's (Procurement Regulatory Authority of Zimbabwe) Review Panel under section 74 of the Public Procurement Act. On 22 February 2022, the Review Panel dismissed the challenge. The applicant then filed this application for review on 15 March 2022, arguing that the Review Panel was improperly constituted and the decision was void, and that the tender award was unlawful as it was made while a challenge was pending.

• Whether the Review Panel was properly constituted in accordance with section 75 of the Public Procurement and Disposal of Public Assets Act
• Whether the failure to advertise for panel members as required by section 75(2)(b) of the Public Procurement Act rendered the panel's constitution invalid
• Whether the tender award made while a challenge was pending determination was lawful
• Whether the failure to join the chairman of the Review Panel was fatal to the review application
• Whether the High Court had jurisdiction to hear the matter given the existence of alternative remedies under section 77 of the Public Procurement Act and section 7 of the Administrative Justice Act
• Whether the 1st respondent (Zimbabwe Manpower Development Fund) had locus standi to be sued

1. The decision of the Review Panel of the 2nd Respondent dated 22 February 2022 dismissing the applicant's application was set aside. 2. The decision to award the 3rd respondent the contract by tender for provision of software services to the 1st respondent dated 9 December 2021 was set aside. 3. The 1st and 3rd respondents were ordered to bear the costs of the application.

A Review Panel constituted under section 75 of the Public Procurement and Disposal of Public Assets Act that fails to comply with the mandatory requirements of section 75(4) regarding the qualifications of panel members, and/or fails to comply with section 75(2)(b) requiring public advertisement for nominations of panelists, is not properly constituted and lacks jurisdiction. Any decision made by such an improperly constituted panel is void ab initio and a nullity. An administrative body asserting compliance with statutory requirements must provide detailed evidence demonstrating how each appointee meets the specific statutory criteria; mere assertions of compliance are insufficient. A decision made without jurisdiction may be disregarded and set aside without the necessity of following any particular procedure. The High Court retains jurisdiction to conduct judicial review of decisions of Review Panels under the Public Procurement Act notwithstanding the existence of an appeal remedy to the Administrative Court under section 77, particularly where that remedy is limited to awarding compensation and cannot set aside the impugned decision.

The court observed that section 73 of the Public Procurement Act, which provides for challenges to procurement proceedings, does not expressly state what should happen once a challenge has been made and is awaiting determination. The court suggested that a purposive approach should be taken to interpret such provisions to avoid absurdity, implying that logic dictates a challenge should be determined before a decision is made on the tender, though this was not necessary for the final determination given the jurisdictional finding. The court noted that the question of whether the Zimbabwe Manpower Development Fund could be sued in its own name (locus standi) was not directly decided in the Tamanikwa case cited by the applicant, though the Supreme Court had recognized it as a statutory body, which the court considered significant. The court indicated that having decided the matter on the preliminary jurisdictional point, it was unnecessary to delve into the merits of whether the tender award made while a challenge was pending was substantively lawful.

This case is significant in Zimbabwean administrative and public procurement law for establishing important principles regarding the proper constitution of statutory review panels. It emphasizes that strict compliance with statutory requirements for the composition of administrative bodies is mandatory, and failure to comply renders decisions void ab initio. The judgment clarifies that administrative bodies must provide detailed evidence showing how appointees meet specific statutory criteria rather than merely asserting compliance. It also confirms that the High Court retains inherent jurisdiction to conduct judicial review of administrative decisions even where alternative remedies exist, particularly where those remedies (such as the Administrative Court under section 77) cannot set aside decisions but only award compensation. The case reinforces the principle that jurisdictional defects can be raised at any time and by any party, and that void decisions can be disregarded without formal setting aside procedures. It provides guidance on the interaction between the Administrative Justice Act and specific statutory appeal mechanisms in public procurement matters.