BOTSWANA’S PUBLIC PROCUREMENT ACT, 2021: NAVIGATING CHALLENGES AND EMBRACING REFORM

Introduction

In 2021, Botswana introduced a new legislative framework being the Public Procurement Act
(The Act) which commenced on the 14th of April 2021. This Act repealed the Public
Procurement and Asset Disposal Act, 2001 which was deemed as being inadequate to address
the issues surrounding Public Procurement in Botswana. The rationale of the Public
Procurement Act was to introduce measures to combat corruption, foster integrity,
transparency, and compliance in Public Procurement. The Act seeks to achieve an alignment
with international best practices and is therefore a mirror of the United Nations Commission
on International Trade Law (UNCITRAL) Model Law on public procurement. The Act
empowers the Minister of Finance to make Regulations to implement the Act and create a
conducive legal framework governing public procurement in Botswana. Consequently, the
Public Procurement Regulations (The Regulations) were published on the 28th March 2023.
One of the major reforms introduced by the Act is the establishment of the Public Procurement
Tribunal (the Tribunal). The Tribunal is set up as an independent dispute settlement forum for
procurement matters. Similarly, the Minister has made the Public Procurement (Tribunal)
Regulations (The Tribunal Regulations). These legislative reforms are a highly welcome
development in Botswana’s Public Procurement law landscape. However, there are challenges
arising from these reforms. The challenges continue to hinder a smooth embrace of the new
legislation. In particular there are challenges in relation to the Public Procurement Tribunal as
to what it is empowered to do in carrying out of its functions. The major controversy entails
whether a claimant is mandated to refer their dispute to the Tribunal before they can approach
the courts. This controversy is borne out by two recent cases being Net Builders (Pty) Ltd v.
Attorney General and 2 Others (The Net Builders Case)1 and Hitecon (Pty) Ltd v Attorney
General and 2 Others (The Hitecon Case)2. This paper highlights the challenges in determining
jurisdiction of the Tribunal under the Act and proffers proposals for reform.

1 Case no: UAHGB-000114-24 (Unreported) (HC) 

2 Case no: UAHGB-000096-24 (Unreported) (HC)

The Role of the Public Procurement Tribunal

Generally, there are three levels of procurement dispute resolution procedures that may be
invoked. These are internal administrative review, external administrative review, and judicial
recourse.3 Internal review includes the procuring entity reviewing its own internal decisions
with the view of identifying any breaches of the Act.4 This is effected under Section 104 of the
Act which requires an aggrieved contractor to, at first instance, lodge a complaint with the
Accounting Officer.5 This procedure is peremptory as the Act uses the word “shall”. On the
other hand, External administrative review “is a procurement challenge or an appeal against
an internal review, conducted before an administrative authority that is external to and
independent of the procuring entity whose procurement decisions is being challenged”.6
External review in the Act is effected by Section 1127 which provides that a contractor
aggrieved by the decision of the Accounting officer under Section 1098 of the new Act may
appeal to the Tribunal within 14 days of the Accounting Officer’s decision. Under Section 115,
the Tribunal is empowered to “adjudicate over matters brought before it by a complainant for
a breach of any provisions of the Act or any appeal brought in accordance with the provisions
of the Act”.9 Furthermore, Section 115 states that, notwithstanding the above generality, the
Tribunal shall adjudicate over: a) an appeal by a complainant of the decision of the Authority
or an accounting officer arising at any point in the procurement process; b) an appeal by a
complainant at any point in the registration, declassification or disciplinary process or decision;
c) a complaint by the Authority against a procuring entity; d) a dispute and resolution of a
conflict between (i) a procuring entity and the Authority (ii) contractors in respect of the
interpretation of this Act; e) breach, termination and interpretation of a procurement contract
including an integrity agreement; and f) any issue within the scope of the Agreement.

3 Kingsley Tochi Udeh, “Blueprint for designing an effective bidder remedies regime” in Geo Quinot and Sope
Williams (eds) Public Procurement Regulation in Africa: Development in Uncertain Times (APLU 2020) 117 4 Ibid 117 5 Public Procurement Act 2021, s 104 (2)
6 (n3) 117 7 (n5) s112 (1) 8 Ibid s109 (1) (a) (b) & (2) 9 Ibid s115 (1)

Judicial recourse entails seeking the court’s intervention and appealing the outcome of the
initial review.10 The Tribunal, from a disappointed bidder’s perspective, provides a forum for
them to air their complaints and to obtain relief.¹¹

The role of the Tribunal is to enhance accountability of procurement officials and government
agencies or state procuring organs and to foster integrity in the procurement system.¹² The
powers of the Tribunal are defined under section 112 of the Act.¹³ These powers, however, are
more clearly defined under the Tribunal Regulations at Regulations 15 and 16. This includes
the granting of an interim interdict for suspension of the procurement process and the setting
aside of decisions of Accounting Officers.¹4 From a reading of these Regulations, it is clear
that the Tribunal is granted wide powers and plays a pivotal role in the procurement disputes
resolution process.

The Role of case Law in shaping the interpretation of Procurement Laws

Judicial intervention is provided for under the Public Procurement Act preliminarily under
Section 113 which provides that there must be an exhaustion of the dispute resolution processes
under the act before a complaint is brought before a court.
15 Section 137 provides that a partywho is aggrieved by the decision of the Tribunal may appeal to the High Court against thatdecision.16 The Act also requires, as is normal practice and procedure, the issuance of astatutory notice of intention to sue to the affected state organ.
17 Each of the review levels has apeculiar and important role it plays in procurement. Judicial recourse allows the benefits ofderivative case law.18. The procurement legislative landscape in Botswana is relatively new,and reliance is placed on the courts for interpretation of the new Act and the Regulations.Settled decisions of the courts provide clarity on the meaning of provisions and how they areto be applied in the procurement process. They provide binding precedents that are fair and
foster transparency, predictability, and are binding on procuring entities. Lastly, it is argued
that while the landscape is relatively new, there is and will be an evolution of procurement

10 (n3) 117 11 Daniel Gordon, “Constructing a Bid Protest Process: The Choices that Every Procurement Challenge System
Must Make” (2006) PCLJ 1 3 12 Ibid 3 13 (n5) s 112 (3) (4) (5) & (6). 14 Public Procurement (Tribunal) Regulations 2023, s14 and 15. 15 (n5) s 113. 16 Ibid s 137 17 Ibid s 138 18 (n3) 117.

laws. Case law assists in the adaptation of these laws, evolved technologies, and the reflecting
market changes in procurement.

Dispute Resolution in Public Procurement in Botswana: Emerging Challenges

Recently, two judgements, being the Hitecon (Pty) Ltd and the Net Builders (Pty) Ltd case,
have addressed the relationship between the Tribunal and the High Court, particularly whether
the Act ousts the jurisdiction of the High Court as a court of instance in procurement matters.
The facts in both cases were similar to the extent that the Applicants in both cases were
aggrieved by the decisions of the Accounting Officers and the remedies they sought. After
filing appeals with the Tribunal, the Applicants approached the High Court on urgency for an
interim interdict. They sought to restrain the respondents from proceeding with the
procurement process pending the hearing and final determination of review applications which
were to later be brought before the High Court and pending the determination of the appeals
pending before the Tribunal. Kebonang J, held in the Hitecon case that the High Court has
unlimited and original jurisdiction which cannot be ousted by the Public Procurement Act. He
reasoned that the original jurisdiction of the High Court is Constitutional and that the Act only
creates the Tribunal as an appellate body. Furthermore, he observed that from the reading of
Section 115 of the Act, the use of the word “may” which is permissive as opposed to being
mandatory, indicates that one has an election either to file a complaint or appeal with the
Tribunal or to approach the High Court. The judge held that the only obligation required is to
file a complaint with the accounting officer under Section 104 (2) of the Act, but that the
permissive use of the word “may” under Section 109 (2) is indicative of the fact that one is not
obliged to approach the Tribunal for a remedy. Makhwe J in the Net Builders (Pty) Ltd case
agrees with Kebonang J and states that “in my view, the requirement to refer the matter to the
Tribunal is not mandatory as opposed to the filing of a complaint with the Accounting Officer.
My view is that the complainant may choose to approach the High Court directly”.19 Makhwe
J further states that, in her understanding, a review is not permissible under the Public
Procurement Act. She further posits that once a party has filed its complaint with the Permanent
Secretary, then they have exhausted the mandatory local remedy under the Act.

These two judgements pose challenges considering that they fail to address the pertinent
circumstances before them and fail to adequately consider the consequences of the precedent

19 (n1) para 5.3

they set with regards the Tribunal and its functions. The decisions have the potential of
undermining the efficient of the Tribunal and its purpose under the Act. It is undeniable that
the High Court has original and unlimited jurisdiction conferred on it by the Constitution.20
This jurisdiction cannot be ousted by subordinate legislation as was reflected by Leburu J in
Letsweletse Motshidiemang v. Attorney General and Others. 21 Therefore the High Court is
empowered to determine procurement matters, that is as far as this argument can go. Secondly,
the judgements posit that the Act only creates the Tribunal as an appellate body and does not
confer review powers on it from the reading of Section 115 of the new Act. A complaint
brought by a would-be contractor regarding the formation stage of the procurement process can
be termed as a “protest”.22 There is no uniform label for protests, the UNCITRAL Model Law
uses the term ‘review’, the World Trade Organisation’s Agreement on Government
Procurement uses the term ‘challenges’ while other jurisdictions use the words ‘appeal or
complaints’ to refer to “protests”. These are used to mean the same thing depending on the
jurisdiction. 23 In Botswana, the Act uses the term ‘Review’ or ‘Complaint’ to the Accounting
Officer and the word ‘Appeal’ or ‘Complaint’ to the Tribunal. The UNCITRAL Model Law’s
guide to enactment envisages what it calls “the independent review body” to have review
powers as reflected by Article 67 of the model law that regulates “review proceedings before
an independent body” and further states that a state may choose to omit Article 67 and only
provide for judicial review provided judicial review is an effective system.24 Drawing inference
from this, the Model Law intends that an independent body must have review powers and not
just appellate powers. According to scholarly work as indicated above, the use of one term does
not exclude the other. Regulation 2 of the Tribunal Regulations defines appeal to be “any
decision, matter, act or omission arising out of a procurement proceeding by the procurement
entity or Authority with respect to which an appeal is preferred: and ‘complaint’ shall be
construed accordingly”.25 In my opinion, this definition of Appeal in including the
determination of a “decision, matter, act or omission” indicates that the legislature’s intention
was to confer on the Tribunal review powers and not only appellate powers especially if there
is illegality attached to an act or procedural omission attached to the decision of the Accounting
Officer. Appeal to the High Court under Section 137 of the Act and Regulation 17 of the

20 Constitution of Botswana 1996, s95 (1) 21 [2019] 4 BLR 143 (HC) 22 (n11) 1. 23 Ibid 2 24 UNCITRAL Model Law guide to Enactment 2011. 25 (n14) Regulation 2.

Tribunal Regulations is provided for in a similar fashion. However, it cannot be argued
similarly that a Review is not envisaged by the Act. Finally on this issue, Regulation 16 (1) (b)
of the Tribunal Regulations empowers the Tribunal to set aside a decision of the Accounting
Officer. The setting aside of a decision can be made because of either a review or an appeal.
We can safely infer from a reading of this Regulation that the Tribunal can indeed determine a
review brought before it. The legislature did not reserve review for the High Court, neither has
it expressly excluded it from the powers of the Tribunal and confined it to the High Court.

Erroneously intertwined with the issue of exhaustion of local remedies is the issue of choice of
forum. Kebonang J states that the use of the word “may” under Section 109 (2) is indicative
that one may choose to approach the Tribunal or the High Court for a remedy. This includes
either review, appeal or seeking an interim interdict, or whatever application may be
competently brought. Makhwe J agreed with this proposition. However, both decisions they
failed to consider the mischief that the legislature was attempting to cure in the old Act,
considering Section 113 of the Act, the role of the Tribunal and the effect of allowing for a
choice of forum. While it is true that the Act uses permissive language under Section 109 (2),
they fail to consider and reconcile that with Section 113, which is a peremptory provision that
one “shall” exhaust “the dispute resolution processes provided in the Act”. The simple
argument in this regard is that these processes include the Tribunal. In designing an effective
bidder remedies regime and to “minimise unwieldiness, the forums should be hierarchical,
from internal to external administrative review and finally a judicial forum, each level of review
must be exhausted before recourse to the next”.26 Holding that a complainant has a choice of
forum to either approach the Tribunal or the High Court is anti-progressive, causes havoc and
renders the legislature’s efforts in making an effective bidder remedies regime by rendering the
tribunal ineffective. The effect is that most complainants would prefer the High Court for close
finality of its decisions and the comfort of having legal counsel during the proceedings. These
judgements regress the effort of improvement back to the flaws of the old PPADB Act, as
reflected in the case of Public Procurement and Asset Disposal Board v. Zac Construction
(Pty) Ltd and Another27 wherein the Court of Appeal held that the word “may” is indicative
that the statutory procedure was not mandatory. Critically, the old Act did not have an
equivalent of Section 113 requiring the exhaustion of local remedies before approaching court.

26 (n3) 117 27 [2014] 3 BLR 381 (CA)

Finally, these two judgements did not consider the procedural circumstances before them,
which has contributed to the challenges highlighted here. There was no review application
before these courts, but rather the orders sought on urgency were essentially a suspension of
the procurement process pending the filing of a review. Essentially the applicants were running
parallel proceedings for an order that the Tribunal is empowered to grant. Allowing this has
led to a practice flaw were attorneys now approach the High Court in similar fashion thereby
disregarding the Tribunal’s powers to grant an interim interdict of suspension. The judgements
failed to consider that Section 112 (4) of the Act, as read with Regulation 15 (1) of the Tribunal
Regulations, empowers the Tribunal to suspend the procurement process pending
determination of the appeal unless a contract has been entered into in which case it shall be
irrevocable. Regulation 15 (3), however, adds a caveat by providing instances in which the
contract can be revoked. Therefore Regulation 15 (1) is not cast in stone. The judgements do
not explore this when dealing with the issue of a well-grounded apprehension of irreparable
harm should the interdict not be granted.

Proposal for Reform

To repair the flaw caused by the interpretation of the Act and differing judgements on the
subject matters, the legislature attempted under Section 113 to make exhaustion of local
remedies peremptory, however the Act must be amended at Section 109 (2) to use peremptory
wording, i.e., ‘shall’ to avoid any doubts. Further a definition of the word Appeal must be
proffered under the Act and amended in the Tribunal Regulations to expressly include review
in each lower forum from the High Court. Alternatively, the Court of Appeal must settle the
issue in that regard. The structure of the Tribunal’s function needs to be clearly defined and its
exhaustion made clear with no doubt.

Conclusion

Africa, as a developing continent faces challenges in its Public Procurement processes, the
most threatening being corruption. To cure this, countries, Botswana, Namibia, and South
Africa included, are moving towards a robust single public procurement framework. To foster
integrity, transparency, fairness, efficiency, and alignment with international best practices, it
is important to embrace reforms and to have continued checks on the challenges that come with
those reforms. It is important to design the complaints procedure in a manner that enhances its
effectiveness and minimises possibilities of negative interpretation and procedural hiccups.
The Public Procurement Regulatory Authority is required to monitor, review, and report on the
performance of the procurement system to the Minister and advise on desirable changes under
Section 8 of the new Act. The above challenges must be attended to swiftly to settle the
controversies that have arisen and to ensure that the effectiveness of the Act is not unduly
compromised.