AG appealing AIP deal case

The Attorney General (AG) Thabo Chakaka-Nyirendahas said his office will appeal against a High Court ruling in not to discharge a judicial review permission granted to four companies involved in fertiliser supply contracts.

The four companies Web Commercials Limited, Mulli Brothers Limited, Rock Ba Rock Investments and FF Trading, claimants in the case, were granted ‘No Objection’ by the Public Procurement and Disposal of Assets Authority (PPDA) to supply fertiliser to Smallholder Farmers Fertiliser Revolving Fund of Malawi (SFFRFM).

But SFFRFM, an interested party in the case, way after the firms’ 2020 bids were evaluated and became successful, sought approval from the PPDA if they could go ahead to award the contracts, but the response was negative on grounds that the firms owed Malawi Government huge sums of money.

The firms on August 27 2021 sued the Review Committee of the PPDA, first defendant in the case, whereas the AG, applied at a later stage to join the case and was made second defendant while SFFRFM came in as an interested party.

Chakaka-Nyirenda proceeded to make an application to discharge the permission for the judicial review which Justice Simeon Mdeza had already granted, accusing the claimants of suppressing material facts when they sought the judicial review.

The AG argued the companies were also related and this was against the prescription of the Competition and Fair Trading Act.

But Mdeza dismissed the AG’s application with costs, stating the issue of financial capacity raised by the AG was immaterial to prevent the judicial review.

“The only way the claimants can challenge a decision of the first defendant is through judicial review, as they did in the present case. The law provides no other avenue,” the judge said.

But the AG in an interview said he would soon be seeking leave from the court to appeal against the ruling, arguing he could not understand how collusive bidding and tendering could be an irrelevant factor.

“How would failure to pay debts on a related procurement be an irrelevant factor? How would lodging a similar claim for compensation for the same amount in another court, as we raised in our argument, be an irrelevant factor? Chakaka-Nyirenda wondered.

The AG said fundamental issues were ignored by the court and some issues were misapplied.

He said the ruling could set a wrong precedent as people who deliberately violate the law would appear to be getting assistance from the court to keep on violating the law.

But John Kalampa, lead lawyer for the claimants in the case, said an appeal in this case was a waste of time.

The firms, the court learnt, had submitted bids in the tender for the supply of farm inputs under the Affordable Inputs Programme (AIP) that was advertised by SFFRFM.

The claimants, the court was told, wrote SFFRFM, asking it to review its decision. The review was denied. They appealed against the decision to the Review Committee of the PPDA.

The claimants, through their lawyers Kalampa, Lusungu Gondwe and Doreen Manjandimo, told the court that in four separate rulings made in respect of each of the claimants, the Review Committee of the PPDA found SFFRFM liable for breach of duty and contract