Procurement Unit Ministry of Development Planning & 7 Others V Supper Solutions (PTY) Ltd & Ano. (C of A (CIV) No 29/2024) [2024] LSCA 26 (1 November 2024)

Procurement Unit Ministry of Development Planning & 7 Others V Supper Solutions (PTY) Ltd & Ano. (C of A (CIV) No 29/2024) [2024] LSCA 26 (1 November 2024)

The deed of settlement, which provided for payment by the successful tenderer to the unsuccessful one in exchange for cessation of legal hostilities, was contrary to public policy, violated procurement law, and lacked lawful cause (justa causa). The court has a duty to raise and enforce public policy considerations even suo motu, especially where the integrity of the public procurement system and the rule of law are at stake. The High Court erred in failing to recognize these broader implications. The deed of settlement was declared null and void and the appeal was upheld.

Citation
[2024] LSCA 26
Parties
First Appellant: Procurement Unit, Ministry of Development Planning; Second Appellant: The Tender Panel, Ministry of Development Planning; Third Appellant: Principal Secretary, Ministry of Development Planning; Fourth Appellant: Ministry of Development Planning; Fifth Appellant: Procurement Policy and Advice Division; Sixth Appellant: Public Procurement Tribunal; Seventh Appellant: Ministry of Finance; Eighth Appellant: Attorney General; First Respondent: Supper Solutions (Pty) Ltd; Second Respondent: Cabana-Zannowethu Joint Venture
Court
Court of Appeal
Jurisdiction
Lesotho
Judgment Date
1 November 2024
Case Number
C of A (CIV) No 29/2024
Procedural Posture
Civil Appeal / Appeal From High Court Judgment Dismissing Application for Rescission and Variation of Court Order Based on Deed of Settlement
Outcome
Appeal upheld
Legal Topics
Deeds of Settlement, Public Policy, Justa Causa, Unconscionability, Court's Power to Raise Issues Sua Motu, Sanctity of Contract, Procurement Law
Source Language
English
Contract Law Public Procurement Administrative Law Deeds of Settlement Public Policy Justa Causa Unconscionability Court's Power to Raise Issues Sua Motu +2 more

Case Brief

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Parties

Procurement Unit, Ministry of Development Planning

First Appellant

The Tender Panel, Ministry of Development Planning

Second Appellant

Principal Secretary, Ministry of Development Planning

Third Appellant

Ministry of Development Planning

Fourth Appellant

Procurement Policy and Advice Division

Fifth Appellant

Public Procurement Tribunal

Sixth Appellant

Ministry of Finance

Seventh Appellant

Attorney General

Eighth Appellant

Supper Solutions (Pty) Ltd

First Respondent

Cabana-Zannowethu Joint Venture

Second Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment Dismissing Application for Rescission and Variation of Court Order Based on Deed of Settlement

Legal Issues

  1. 1 Whether a deed of settlement made an order of court can be set aside on grounds of public policy and lack of justa causa
  2. 2 Whether the court can raise public policy issues on its own motion at appellate stage
  3. 3 Whether the deed of settlement between respondents in a procurement dispute is contrary to public policy and procurement law

Ratio Decidendi

The deed of settlement, which provided for payment by the successful tenderer to the unsuccessful one in exchange for cessation of legal hostilities, was contrary to public policy, violated procurement law, and lacked lawful cause (justa causa). The court has a duty to raise and enforce public policy considerations even suo motu, especially where the integrity of the public procurement system and the rule of law are at stake. The High Court erred in failing to recognize these broader implications. The deed of settlement was declared null and void and the appeal was upheld.

Court Disposition

Appeal upheld

Orders

  • The appeal is upheld.
  • The High Court's order making the deed of settlement a court order is set aside.