High Court has no jurisdiction in NSSA tender wrangle

A protracted legal battle between the National Social Security Authority (NSSA) and software supplier Twenty Third Century Systems (Pvt) Ltd (TTCS) over more than US$10 million paid under a disputed tender has been halted after the High Court ruled that it lacks jurisdiction to determine the legality of the procurement process at the centre of the dispute.

In a judgment handed down on 31 December 2025, Justice Jacob Manzunzu upheld a preliminary objection raised by TTCS, finding that disputes arising from alleged irregularities in a tender process fall within the exclusive jurisdiction of the Administrative Court.

"The preliminary point challenging the jurisdiction of this court must succeed," Manzunzu ruled. "The court hereby declines jurisdiction. The plaintiff's claim is dismissed with costs."

The ruling brings to an end two consolidated High Court cases in which NSSA and TTCS sued each other following a fallout over a 2013 tender for the supply and implementation of a social security system. NSSA had approached the court seeking a declaratory order that the tender and the resulting agreements were unlawful, alleging non-compliance with section 7(1) and (2) of the Procurement Regulations, SI 171 of 2002. It also sought restitution of US$10 445 582 paid under the contracts.

In the alternative, NSSA claimed breach of contract and sought to enforce security allegedly provided by third parties, including the execution of mortgaged properties.

TTCS opposed the claim, insisting that both the tender process and the resulting agreements were lawful and binding. The company counter-accused NSSA of breaching the contracts by using 498 software licences despite being authorised to use only 200, and by failing to pay for the additional 298 licences as well as outstanding annual maintenance fees.

Much of the background to the dispute was common cause. NSSA initially issued an open tender in 2012, which was later cancelled, before proceeding with a closed tender for the same project. TTCS emerged as the successful bidder, with the award confirmed by the State Procurement Board in a letter dated 24 May 2013.

A challenge by a losing bidder was subsequently dismissed by the Administrative Court in judgment AC 5-14, which remains in force.

Following that ruling, NSSA and TTCS entered into a Social Security Systems Agreement on 31 October 2013 and an End User Licence Agreement on 20 December 2013. NSSA went on to pay more than US$10 million towards the project, covering hardware, software licences and initial annual maintenance.

TTCS later invoiced NSSA for additional licences and maintenance fees, which were not paid. In December 2017, NSSA issued notice of its intention to cancel the agreements and, in August 2020, asserted that the tender process itself had been invalid.

Central to the High Court decision was whether it was the proper forum to determine the legality of the tender. TTCS argued that any challenge to the decision to proceed by special tender should have been brought before the Administrative Court under the Procurement Act. NSSA, however, maintained that it was entitled to seek a declaratory order under section 14 of the High Court Act.

Justice Manzunzu agreed with TTCS, holding that procurement disputes of this nature fall squarely within the specialist jurisdiction of the Administrative Court. He said the decision to conduct the closed tender in the manner complained of was one that "falls within the specialist power and competence of the Administrative Court," adding that "a court must be sure it has the jurisdiction before it can exercise it."

Having upheld the jurisdictional objection, the court declined to rule on the remaining preliminary and substantive issues, including whether the agreements were void, whether restitution was due, or whether either party had breached the contracts.

The ruling leaves NSSA's bid to recover more than US$10 million dismissed with costs, effectively closing the matter in the High Court without a determination on the merits of the long-running dispute.