Zemqos Incorporated (Pvt) Ltd v Procurement Regulatory Authority of Zimbabwe and Others

The applicant, a private limited company specializing in designing, developing, supplying and installing Automated Parking and Enforcement Systems, applied for a tender on 8 February 2017 to provide Traffic and Parking systems for various municipalities. The tender was rejected by the State Procurement Board (SPB), the predecessor of the first respondent (Procurement Regulatory Authority of Zimbabwe). Instead, the third respondent (Univern Enterprises) was awarded the tender through a "No Objection" directive (PBR 0859) dated 8 September 2016, which allowed direct engagement with the third respondent for the ZIMTIS project. The decision involved both the SPB and the Office of the President and Cabinet (OPC). The applicant sought a declaratory order to have the directive declared null and void, claiming the process was unprocedural and unfair. The applicant did not join the OPC or the Accounting Officer as parties to the proceedings.

• Whether the application was properly constituted as a declaratory order or should have been filed as a review application under Order 33 Rule 256
• Whether the applicant had locus standi to seek a declaration of rights under section 14 of the High Court Act
• Whether the failure to join necessary parties (the OPC and Accounting Officer) was fatal to the application
• Whether the applicant's failure to comply with the 8-week time limit for review proceedings under Rule 259 was fatal to the application

The application was dismissed with costs

Where an applicant seeks to challenge administrative proceedings as being unprocedural or unfair (rendering them voidable rather than void ab initio), the proper procedure is to file a review application in accordance with Order 33 Rule 256, not an application for a declaratory order. The provisions of Order 33 Rule 256 are peremptory and must be complied with. Furthermore, where a chain of decision-making by multiple administrative bodies led to the impugned decision, all parties involved in that decision-making process must be joined for the court to properly determine the fairness and lawfulness of the administrative action. An applicant cannot avoid the procedural requirements and time limits for review proceedings by simply framing the matter as an application for a declaratory order.

The court made a speculative observation that the applicant may have deliberately chosen to proceed by way of declaratory order rather than review because it was out of time for filing a review application under Rule 259, which requires filing within 8 weeks of the determination. The court noted that the applicant had failed to seek condonation for late filing. The court also observed that while the respondents raised additional points regarding the merits of the case concerning Procurement Regulations, these went to the merits and should not have been argued as points in limine.

This case reinforces important principles of administrative law procedure in Zimbabwe, particularly: (1) the peremptory nature of Order 33 Rule 256 requiring proper format for review applications; (2) the distinction between void and voidable administrative decisions and the appropriate remedy for each; (3) the necessity of joining all parties whose decision-making formed part of the chain of administrative action being challenged; and (4) that litigants cannot circumvent procedural requirements for review applications by framing them as declaratory order applications under section 14 of the High Court Act. The case serves as a warning to practitioners about strict compliance with procedural requirements in challenging administrative decisions, particularly in the procurement context.