News / National
Zupco bus deal case: High Court reserves judgment
11 Mar 2022 at 18:12hrs | Views
HIGH Court judge Justice Joseph Mafusire has reserved judgment on the case of the Zimbabwe Independent newspaper and Transparency International Zimbabwe (TIZ), which are suing three government ministers for refusing to release information on the procurement of Zupco buses.
The Independent editor Faith Zaba had deposed an affidavit challenging the failure by government ministers to give information on how the buses were procured.
The Independent and TIZ had cited the Minister of Local Government and Public Works, Minister of Finance, Minister of Transport and the Zimbabwe United Passenger Company (Zupco) as the first to fourth respondents.
Independent and TIZ, represented by Raymond Kadani in his heads of argument, had requested the three ministries and Zupco to provide the information on behalf of the applicants.
Zupco, represented by Chengetai Daitai, is the only respondent that filed its response to the application and they submitted that the information on the Zupco deal is the prerogative of the Minister of Local Government.
The applicants then dropped the case against Zupco.
In response to the withdrawal before Justice Mafusire, Daitai said his client did not breach the provisions of Administrative Justice Act to hide the information.
"In reference to the request for information on the procurement of buses for Zupco, kindly note that the buses are being procured by the Government of Zimbabwe as Zupco shareholders," Daitai submitted.
"We are therefore not privy to the contents of the agreement and information requested by your clients. Hence, kindly direct your questions to our shareholder.
"I appreciate that the applicants' lawyer (Kadani) withdrew the application against my client, Zupco.
My client did not breach the provisions of Administrative Justice Act hence had no case to answer," he stated.
However, the three ministries ignored the applicants saying they were not obliged to respond.
In their submission to the application by the applicants, the ministries' lawyer, Joseph Chibanda, said his clients were not obliged to respond to the applicants with reasons why they failed to respond.
"I pray that the founding affidavit of Faith Zaba and application be found defective.
The first and second applicant failed to provide correct information to the court they cited in their founding affidavit that the application was filed on 24 June 2021 when in actual fact it was on 26 August 2021.
The applicants also failed to exhaust internal remedy to get information before coming to court," Chibanda submitted.
"There was no obligation to answer those requests because they were simply letters to the minister.
It is by that reason that it won't reply to this matter."
But the applicants' lawyer Kadani argued that the failure by the three ministries to respond is deemed refusal and that their application be granted on that basis.
"We believe the failure to notify our clients of your decision on the request for information within the period specified above amounts to a ‘deemed refusal' in terms of Section 10(1) of the Act.
"We appreciate that there might possibly be a justifiable basis for the refusal; however, the giving of reasons for the refusal is a compulsive imperative, not only to fulfil our clients legitimate expectations, but also to inform them on the veracity of the refusal and the basis of the decision, for purposes of planning the next course of action to take in pursuit of our clients' interests, " Kadani submitted.
He, however, requested Justice Mafusire to grant his provisional order that the Ministers of Local Government, Finance and Transport be compelled to supply the applicants with written reasons for the refusal to provide information relating to the purchase of buses for Zupco, and be ordered to give the lawyers of the applicants.
Justice Mafusire reserved the judgment on the matter.
According to the court papers, on March 11, 2020, it was reported by the Herald in an article under the heading 65 more Zupco buses delivered that many buses had been delivered from China to bolster Zupco's fleet as part of the government's efforts to provide affordable transport.
In March 2020, the Independent, following a three-month investigation, had reported about the suspicious circumstances surrounding the acquisition of the buses.
These articles reported that the government had initially signed a hire purchase agreement with Landela Investments, but had subsequently decided to pay Landela Investments ZW$863,2 million for 162 buses.
Landela, thereafter, sold each bus to the government for US$212 962, yet the company had purchased the buses from China for US$58 900.
It was this curious arrangement, which prompted the Independent to investigate the nature of Landela and accordingly, they sought to peruse the Registrar of Companies records relating to Landela, but the records relating to that company were continuously reported by the Companies Registry to be missing.
The applicants' legal practitioners then made follow-up efforts to obtain more information about Landela, but the lawyers' endeavours did not yield positive returns.
The applicants' lawyer wrote a letter to the Registrar of Companies dated July 23, 2020, which was never responded to.
Sometime in May 2020, Independent asked the ministers to shed more light on the details surrounding the purchase of buses, and the involvement, if any, of Landela.
Regrettably, this information was not forthcoming as all three cabinet ministers distanced their respective offices from the transaction.
When asked to comment, the First Respondent (Local Government ministry) confirmed that Zupco falls under the jurisdiction of his ministry, but that the procurement of buses is a Central Mechanical Equipment Department (CMED) issue, which parastatal falls under the Ministry of Transport.
The Ministry of Transport then directed all questions relating to the purchase of buses to the Ministry of Finance, and advised that they were responsible for relevant tenders and purchases.
The Ministry of Finance washed their hands of any responsibility and stated that Treasury only approves payment, but is not involved in the purchase of buses.
They then shifted responsibility to the Procurement Regulatory Authority of Zimbabwe (Praz).
"When Praz was asked to comment on the Ministry of Finance statement, its position in a letter dated 4th June 2020, was that procurement is the responsibility of the procuring entity and that its role in terms of the applicable laws is that of a regulator, and that it does not have a direct role in the approval of tenders," applicants submitted.
"The respondents' evasive attitude only raised greater concerns around the business and financial arrangements relating to the transaction; and on 26 August 2020, the applicants' legal practitioners wrote to the third and fourth respondents, requesting information relating to the purchase of buses.
The position taken by the fourth respondent in response to the request for information was that Zupco falls under the first respondent's ministry.
His letter was dated 31 August 2020."
On September 3, 2020, a separate letter requesting information was addressed to the second respondent; and another was addressed to the first respondent on September 9, 2020, and no information was provided to the applicants by the respondents.
The respondents refused to disclose pertinent information regarding the purchase of buses, which information is within their knowledge and is reasonably accessible to them.
The Independent editor Faith Zaba had deposed an affidavit challenging the failure by government ministers to give information on how the buses were procured.
The Independent and TIZ had cited the Minister of Local Government and Public Works, Minister of Finance, Minister of Transport and the Zimbabwe United Passenger Company (Zupco) as the first to fourth respondents.
Independent and TIZ, represented by Raymond Kadani in his heads of argument, had requested the three ministries and Zupco to provide the information on behalf of the applicants.
Zupco, represented by Chengetai Daitai, is the only respondent that filed its response to the application and they submitted that the information on the Zupco deal is the prerogative of the Minister of Local Government.
The applicants then dropped the case against Zupco.
In response to the withdrawal before Justice Mafusire, Daitai said his client did not breach the provisions of Administrative Justice Act to hide the information.
"In reference to the request for information on the procurement of buses for Zupco, kindly note that the buses are being procured by the Government of Zimbabwe as Zupco shareholders," Daitai submitted.
"We are therefore not privy to the contents of the agreement and information requested by your clients. Hence, kindly direct your questions to our shareholder.
"I appreciate that the applicants' lawyer (Kadani) withdrew the application against my client, Zupco.
My client did not breach the provisions of Administrative Justice Act hence had no case to answer," he stated.
However, the three ministries ignored the applicants saying they were not obliged to respond.
In their submission to the application by the applicants, the ministries' lawyer, Joseph Chibanda, said his clients were not obliged to respond to the applicants with reasons why they failed to respond.
"I pray that the founding affidavit of Faith Zaba and application be found defective.
The first and second applicant failed to provide correct information to the court they cited in their founding affidavit that the application was filed on 24 June 2021 when in actual fact it was on 26 August 2021.
The applicants also failed to exhaust internal remedy to get information before coming to court," Chibanda submitted.
"There was no obligation to answer those requests because they were simply letters to the minister.
It is by that reason that it won't reply to this matter."
But the applicants' lawyer Kadani argued that the failure by the three ministries to respond is deemed refusal and that their application be granted on that basis.
"We believe the failure to notify our clients of your decision on the request for information within the period specified above amounts to a ‘deemed refusal' in terms of Section 10(1) of the Act.
"We appreciate that there might possibly be a justifiable basis for the refusal; however, the giving of reasons for the refusal is a compulsive imperative, not only to fulfil our clients legitimate expectations, but also to inform them on the veracity of the refusal and the basis of the decision, for purposes of planning the next course of action to take in pursuit of our clients' interests, " Kadani submitted.
He, however, requested Justice Mafusire to grant his provisional order that the Ministers of Local Government, Finance and Transport be compelled to supply the applicants with written reasons for the refusal to provide information relating to the purchase of buses for Zupco, and be ordered to give the lawyers of the applicants.
Justice Mafusire reserved the judgment on the matter.
According to the court papers, on March 11, 2020, it was reported by the Herald in an article under the heading 65 more Zupco buses delivered that many buses had been delivered from China to bolster Zupco's fleet as part of the government's efforts to provide affordable transport.
In March 2020, the Independent, following a three-month investigation, had reported about the suspicious circumstances surrounding the acquisition of the buses.
These articles reported that the government had initially signed a hire purchase agreement with Landela Investments, but had subsequently decided to pay Landela Investments ZW$863,2 million for 162 buses.
Landela, thereafter, sold each bus to the government for US$212 962, yet the company had purchased the buses from China for US$58 900.
It was this curious arrangement, which prompted the Independent to investigate the nature of Landela and accordingly, they sought to peruse the Registrar of Companies records relating to Landela, but the records relating to that company were continuously reported by the Companies Registry to be missing.
The applicants' legal practitioners then made follow-up efforts to obtain more information about Landela, but the lawyers' endeavours did not yield positive returns.
The applicants' lawyer wrote a letter to the Registrar of Companies dated July 23, 2020, which was never responded to.
Sometime in May 2020, Independent asked the ministers to shed more light on the details surrounding the purchase of buses, and the involvement, if any, of Landela.
Regrettably, this information was not forthcoming as all three cabinet ministers distanced their respective offices from the transaction.
When asked to comment, the First Respondent (Local Government ministry) confirmed that Zupco falls under the jurisdiction of his ministry, but that the procurement of buses is a Central Mechanical Equipment Department (CMED) issue, which parastatal falls under the Ministry of Transport.
The Ministry of Transport then directed all questions relating to the purchase of buses to the Ministry of Finance, and advised that they were responsible for relevant tenders and purchases.
The Ministry of Finance washed their hands of any responsibility and stated that Treasury only approves payment, but is not involved in the purchase of buses.
They then shifted responsibility to the Procurement Regulatory Authority of Zimbabwe (Praz).
"When Praz was asked to comment on the Ministry of Finance statement, its position in a letter dated 4th June 2020, was that procurement is the responsibility of the procuring entity and that its role in terms of the applicable laws is that of a regulator, and that it does not have a direct role in the approval of tenders," applicants submitted.
"The respondents' evasive attitude only raised greater concerns around the business and financial arrangements relating to the transaction; and on 26 August 2020, the applicants' legal practitioners wrote to the third and fourth respondents, requesting information relating to the purchase of buses.
The position taken by the fourth respondent in response to the request for information was that Zupco falls under the first respondent's ministry.
His letter was dated 31 August 2020."
On September 3, 2020, a separate letter requesting information was addressed to the second respondent; and another was addressed to the first respondent on September 9, 2020, and no information was provided to the applicants by the respondents.
The respondents refused to disclose pertinent information regarding the purchase of buses, which information is within their knowledge and is reasonably accessible to them.
Source - The Zimbabwe Independent
