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Court snubs Attorney General on Affordable Inputs Programme deals

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High Court Judge Simeon Mdeza on Monday dismissed with costs an application by Attorney General (AG) Thabo Chakaka Nyirenda for the court to discharge an application by four companies that want a judicial review of Affordable Inputs Programme (AIP) deals.

The four companies are Web Commercials Limited, Mulli Brothers Limited, Rock Ba Rock Investments and FF Trading while the review committee of Public Procurement and Disposal of Assets Authority (PPDA) and the AG are the first and second defendants, respectively.

In 2020, the four companies submitted bids in a tender for the supply of farm inputs under AIP that was advertised by Smallholder Farmers Fertiliser Revolving Fund of Malawi (SFFRFM), in which the companies were allegedly successful.

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SFFRFM, which is an interested party in the case, then sought approval from the PPDA and was given a “No Objection” to enter into the contract.

However, the fund would later decline to enter into contracts with the four, arguing that they had outstanding debts with the Reserve Bank of Malawi (RBM).

The four firms appealed the decision to the PPDA committee.

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The committee found SFFRFM liable for breach of duty and contract and said, as such, it was supposed to enter into contract.

“As a remedy for the breach, the 1st defendant [PPDA Committee] ordered that the interested party [SFFRFM] must pay the costs of preparing the bids and costs of the appeal. It refused to award damages as sought by the claimants,” the ruling reads.

Due to the refusal to award damages, the four companies sought permission for the judicial review, which the judge granted, and the matter was then set for hearing.

The AG applied to be added and then applied to “discharge or set aside” the permission.

Among other reasons, the AG had argued that the companies suppressed material facts that they were related, hence their bid for the supply of fertiliser was against the prescription of the Competition and Fair Trading Act.

In his determination Tuesday, Mdeza dismissed the AG’s application, stating that SFFRFM’s decision was not based on parties being related.

“To allow such an issue to rise at this stage of the proceedings would be a grave injustice to the claimants. I, therefore, find no merit in this contention and accordingly dismiss it,” he said.

The other argument was that the companies did not have the financial capacity because they owed RBM and the Malawi Savings Bank money, but it has also been dismissed.

“In view of the foregoing, I proceed to dismiss the 2nd defendant’s application to discharge permission to apply for judicial review. I do so with costs to the claimants. The matter proceeds to hearing of the substantive judicial review on a date to be fixed,’ the court’s ruling reads.

The four companies are seeking K3.8 billion from the government for being removed from the list of 2020 AIP suppliers.

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