High Court strikes procurement law challenge off the roll

By Fidelis Munyoro, The Herald - A High Court challenge by a Harare lawyer, Mr Naison Machingauta, to challenge the validity of a provision in the public procurement law, was struck off the roll.

The court declared the application procedurally defective, citing inherent defects in its pleadings.

At its core is subsection (9) of section 3 of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23].

The subsection in question, brought into force by Statutory Instrument 156 of 2023 by President Mnangagwa, exempts some public enterprises from the regulation provided for by the Act.

The challenge contended that the provision contravened constitutional values of transparency, fairness, and accountability, as provided in sections 315, 195(2), and 298(1)(a) and (d) of the Constitution.

Mr Machingauta requested the High Court to pronounce the provision unconstitutional and asked the court to refer the case to the Constitutional Court for confirmation.

President Mnangagwa, Finance, Economic Development, and Investment Promotion Minister Professor Mthuli Ncube, and Attorney-General Virginia Mabiza, who were named as respondents, defied the application on both substantive and procedural grounds.

The respondents alleged that the application was vague and not clear, and Mr Machingauta did not explain or clarify how the quoted constitutional provisions were being breached.

They submitted that this shortcoming placed an unjustified load on the court to construe the pleadings and connect them with the claims.

Justice Rogers Manyangadze, delivering the judgment, emphasized the procedural dimension of constitutional litigation.

He emphasized the call for specificity and precision in constitutional pleadings, observing that all the cited provisions of the Constitution have to be construed individually and its alleged contravention noted with precision.

"A grand and conglomerate reading of the Constitution is not always going to lead to a correct interpretation. Rarely will a word be unnecessarily used in the Constitution," he stated.

The court ruled that Mr Machingauta's founding affidavit was flawed and that attempts to elaborate on issues in subsequent filings such as the answering affidavit and heads of argument were inadequate to address the flaws.

Justice Manyangadze reinforced the doctrine that supporting documents should not supplant a properly pleaded founding affidavit.

The doctrine of constitutional avoidance was also the dominant feature of the ruling. Justice Manyangadze emphasized the need to exhaust remedies in terms of the subsidiary legislation prior to resorting to constitutional adjudication. The Herald