High Court rejects Riczone Inv claim to US$840k co...

High Court rejects Riczone Inv claim to US$840k copper cables tender

Nyashadzashe Ndoro

Chief Reporter

The High Court has dismissed an urgent application filed by Riczone Investments (Pvt) Ltd against Tel One (Pvt) Ltd and Jadeyed Investments (Pvt) Ltd, citing failure to exhaust domestic remedies and lack of urgency.

Riczone Investments had sought a provisional order to stop the award of a contract to Jadeyed Investments pending finalisation of its application, claiming it was the highest bidder in a tender for the disposal of redundant copper cables valued at US$840,210.

Justice Joseph Chilimbe, however, ruled that Riczone Investments had failed to act timeously and had not properly pleaded its rights and interests under the tender arrangements, given the publication of General Notice 164B, which exempted TelOne's procurement and disposal activities from the Public Procurement and Disposal of Public Assets Act.

The court held that the domestic remedies provided for in the Act were sufficient and that Riczone Investments should have exhausted those remedies before approaching the High Court.

"The alternative remedy must be adequate in the circumstances, be ordinary and reasonable, be a legal remedy, and grant similar protection," Justice Chilimbe quoted from the Supreme Court case of Tribac Tobacco (Pvt) Ltd v Tobacco Marketing Board.

Riczone Investments had argued that the domestic remedies were insufficient, but the court disagreed, stating that the Act provided for a simple, clear, and time-bound challenge procedure, including the facility of an interdict.

The court ordered that the matter be removed from the roll of urgent matters, with costs being borne by Riczone Investments. The preliminary points raised by the parties will be deferred for determination with the main matter.

In his ruling, Justice Chilimbe emphasised the importance of exhausting domestic remedies, citing the case of Madzingira v Provincial Magistrate I. Mhene NO and Anor, where he noted that "timeous action means the timely pursuit, through the correct procedure, of relief competently claimable under a specific cause of action."

The judge added: "This conclusion becomes dispositive of the issue of urgency. It exposes Riczone`s error in forum selection, which in turn generated the peril which the party now faces. By electing out of the challenge procedure available to it under Part X of the Act, Riczone failed to act timeously. And timeous action, according to the well-established principles on urgency, means the timely pursuit, through the correct procedure, of relief competently claimable under a specific cause of action.

"And additionally, to conclude a point earlier noted, Riczone failed to properly plead the extent of its rights and interest under the tender arrangements given the publication of General Notice 164B.This failure put its cause of action into further contention, together with the rights, interest as well as relief sought. That in turn limited its capacity to demonstrate the existence of urgency based on the established principles, including the guidelines set in Documents Support Centre v Mapuvire.

"It is accordingly ordered as follows; - That this matter be and is hereby declared as not urgent and that it be removed from the roll of urgent matters with costs being borne by the applicant.

"That the preliminary points raised be deferred for determination with the main matter."