Justice Charles Mkandawire of the Supreme Court of Appeal has dismissed an application by Savenda Management Services to enforce default judgement to be paid K30 billion from government as compensation for a cancelled 300 ambulances procurement deal in 2019.
Following High Court Judge Annabel Mtalimanja’s default judgment in favour of Savenda, Assistant Registrar Annie Gumulira awarded the company £12, 038, 000 as expenses incurred in order to fulfill requirements of the procurement proceedings; $15, 018, 020 for loss suffered by the illegal cancellation of the procurement proceedings $1 000 000 as expenses incurred in preparation of the bid documents considering mainly the complexity of the process in the procurement proceedings and $1 000 000 general damages payable to the claimant for inconvenience.
The court also ordered government to compensate the Savenda for the loss suffered by spending £320 000.00 on the ministry’s employees during a post-bid evaluation exercise among others.
But Justice Mkandawire stayed enforcement of the judgement and gave 21 days for the lower court to prepare and send to the Supreme Court a record of appeal, which was not complied with, prompting Savenda to ask the court to discharge the stay and enforce payment of the money, which Attorney General Thabo Chakaka Nyirenda is contesting.
But Justice Mkandawire notes that the fact that the record of appeal was not sent to the court in time as directed, was not the Attorney General’s making but registrar.
“In the interest of justice I do not think that the appellant (Attorney General) should be shouldered with the blame. That being the case I do not think that there is any justification why I should vacate the stay herein. I have also taken into account that at the time I was hearing this application, everything was now in place.
“Much as I do not condone non-compliance with court orders in particular my own order, this case provided me with an opportunity to holistically look at the prevailing circumstances and make a direction that is in the best interest of justice. This application is therefore dismissed,” reads the judgement.
Savenda had objected to the AG’s application staying enforcement of default judgement pending appeal saying it was premature but Justice Mkandawire said he stayed enforcement of the judgment looking at the economic repercussions of the dispute on the state.
The Zambian firm, Savenda argues that cancellation of the procurement proceedings in 2019 was not done in the public interest and contravened Section 46 (b) of the Public Procurement and Disposal of Public Assets Act.
On September 11 2020 Justice Annabel Mtalimanja of the High Court in Lilongwe agreed with Savenda saying government had created legitimate expectations to the claimant which made them incur expenses to fulfill the requirements of the procurement proceedings.