KDC in P72m Legal Battle

Plans to build two primary schools put on hold


The High Court has agreed to set aside a decision by Kweneng District Council (KDC) to appoint Banco Enterprise and Ossy & Sons Investments for the construction of two new primary schools in Mogoditshane Block 9 and Kumakwane valued at over P72 million.
On Friday last week, Justice Zein Kebonang concluded that Elephants Projects Pty (Ltd) was unlawfully and illegally disqualified from the tender after it was discovered that they shared key resources personnel with one of the bidding companies, which was contrary to the tender requirements. In the end, the tender was awarded to Banco Enterprise and Ossy & Sons.

The tender was opened for bidding in June 2021.
According to the court papers, both Elephants Projects and Experience Counts submitted one Tshegofatso Nkitseng as their Site Agent. Nkitseng deposed an affidavit stating she was not aware how her papers ended up in Experience Counts’ tender application as she had never agreed to work with them. Experience Counts did not challenge Nkitseng and Elephants Projects’ accounts.

Before Elephants Projects approached the High Court to set aside the award of the tender, the company wrote to KDC asking for reasons for their disqualification, but KDC did not oblige. It was only discovered at a later stage that during the evaluation process that the company had scored a high pass in the first two criteria (Compliance and Technical), only to be disqualified for sharing a site agent.

Judge Kebonang noted that KDC acted unfairly in failing to heed Elephants Projects’ case but rushed for disqualification. “The Applicant’s tender should simply not have been disqualified on a fraud unknown to it and committed by a third party,” said the judge. “The 3rd Respondent (KDC) should have afforded them a hearing in line with the rules of natural justice.”

It was on these grounds that Justice Kebonang ordered the award of the tender set aside and reviewed.

The Chairperson of KDC Appeals Board, Modongo Mmolawa, R Thebe, Kweneng District Council, Banco Enterprise, Ossy and Sons Investment and Experience Counts were listed as the respondents in the case.