Misryoum reports the High Court struck a tender challenge after ruling the bidder bypassed the Public Procurement Tribunal process.
By overlooking the Public Procurement Tribunal, the court ruled that the company had bypassed the dispute-resolution processes mandated by the Public Procurement Act.Handing down judgment on April 28, 2026, Justice Onkagetse Pusoentsi found that whilst the matter was inherently urgent because it involved a public procurement dispute, the court’s jurisdiction had been ousted by Section 113 of the Public Procurement Act, 2021.. That provision requires a bidder to exhaust all internal dispute resolution mechanisms up
to the Public Procurement Tribunal before approaching the courts.“The Public Procurement Tribunal is an expert and specialised tribunal in tender disputes.. The legislature was intentional in creating the same and was fully aware and cognisant of Section 95(1) of the Constitution, which created this court.. The intention was very clear and was for the said Tribunal to deal with tender disputes before complainants could resort to this court,” Pusoentsi wrote.The dispute centred on Tender No..
7235/24, floated by BPC in November 2024 for the provision of short-term insurance brokerage services.. Kgare Insurance Brokers submitted a bid but was later informed, around October 2025, that it had been unsuccessful.. The company requested a debriefing session, lodged a formal complaint, and participated in a review meeting in November 2025.. After a series of final decisions communicated in March 2026, the tender was awarded to Mogakolodi Consultants (Pty) Ltd, the second respondent.Aggrieved, Kgare
Insurance Brokers filed an urgent court application on April 5, 2026, seeking a rule nisi interdicting BPC, Mogakolodi Consultants, and a third respondent, Quality Services (Pty) Ltd, from executing any contract or works under the tender, pending a review application.. The company’s managing director, Tiny Kgatlwane, argued that the adjudication process was irregular and unlawful, that BPC had violated procurement laws in declaring the applicant unsuccessful, and that the successful bidder had quoted exorbitant prices
with no comparable value.. The application claimed that if the contract proceeded unchecked, it would result in wasteful public expenditure and render any future court review academic.BPC and Mogakolodi Consultants opposed the application, raising several preliminary legal points.. Their central argument was that Kgare Insurance had failed to exhaust the remedies available under the Public Procurement Act before racing to the High Court.. They also contended that the matter was moot because the Public Procurement
Tribunal had, on April 2, 2026, already upheld an appeal in a related matter concerning the same tender.Justice Pusoentsi first addressed the question of urgency.. Following a line of Court of Appeal decisions and the Chief Justice’s Practice Directive No.1 of 2021, he confirmed that all public procurement disputes are to be treated as urgent because of their exceptional public importance.“This being a procurement dispute, I am satisfied that this application is urgent and I
will hear it as such.. I am also satisfied that the applicant approached the court with reasonable speed,” the judge stated.However, the matter unravelled on the second jurisdictional challenge.. Justice Pusoentsi said that where Parliament has created a specialised dispute resolution forum, a litigant does not have a choice of forum, the prescribed process must be exhausted first.“A complainant who wishes to lodge a complaint shall exhaust the dispute resolution processes provided in this Act
before the complainant refers the complaint to a court,” he said.. The judge noted that the word “shall” is couched in mandatory and peremptory terms, leaving no room to approach the High Court directly at first instance.He rejected the applicant’s argument, advanced by their attorneys, that a bidder had a choice between filing an appeal with the Tribunal and bringing a review application to the High Court.The judgment further drew strength from a recent Court
of Appeal pronouncement by Justice Cameron in China Civil Engineering Construction Corporation v G4 Civils, which described the Public Procurement Tribunal as having “ample powers” to “peer into the nooks and crannies of any disputed tender.”The judge concluded that the Tribunal could grant Kgare Insurance Brokers the very relief it was seeking from the High Court.“Accordingly, the point in limine on this jurisdictional trigger succeeds,” Justice Pusoentsi ordered, striking the application from the roll and
awarding costs to the respondents.