Moorosi Tsiane
SOUTH African company, Laxton Group, has petitioned the High Court’s Commercial Division, seeking to halt the Independent Electoral Commission (IEC) from awarding the tender for the supply of an Electoral Management Information System (EMIS) to foster the effective running of national elections.
The IEC had issued an open tender in May 2024 for the supply, installation, testing, commissioning, training, and technical support for the EMIS.
This system aims to establish a new registration regime that accurately registers electors using national identification documents as the only proof of identity.
Laxton, founded in South Africa in 2004, is now a global company with offices in Portugal, China, America and Netherlands. It specialises in the design, engineering, and manufacturing of biometric devices. It also offers identity and election systems.
It was one of the companies that submitted a bid for the tender. However, its bid was not evaluated by the IEC procurement committee, with the contract awarded instead to Waymark Infotech, prompting Laxton to seek legal recourse.
The IEC, Procurement Tribunal, Ministry of Finance Principal Secretary Nthoateng Lebona, Attorney General Advocate Rapelang Motsieloa KC, COMNET Lesotho (PTY) LTD, Toppan Gravity (PTY) LTD, RAMCOR (PTY) LTD, and Waymark Infotech (PTY) LTD are cited as the first to eighth respondents in the matter.
According to Laxton Manager, Sello Fanya, their bid was responsive and contained all the necessary information required in the tender invitation. However, Laxton’s bid was not evaluated, he claims.
“I submit that upon the opening of bids, the applicant supplied all required information and was responsive to the bid. The IEC requested the resubmission of some documents, and we complied,” said Mr Fanya.
“The applicant’s bid should have been evaluated, especially on relevant capacity and experience. However, this did not happen. The IEC procurement committee disqualified the applicant, claiming it did not have a valid tax clearance. They pointed to the wrong document, which I clarified as the tax clearance.”
Mr Fanya further revealed that four members of the IEC procurement committee had promised to verify the authenticity of Laxton’s tax clearance and revert to him. However, he claims this had not been done. He was later advised to approach the Director of Elections for intervention.
On 2 September 2024, Mr Fanya visited the Procurement Tribunal offices at the Ministry of Finance, where he was instructed by Leseli Likotsi on how to appeal the IEC procurement committee’s decision. Four days later, he returned to the office after failing to reach Mr Likotsi by phone, and another official, Mr Fanyane, informed him that the tribunal “does not exist in practice”.
Frustrated, Mr Fanya attempted to meet with the Finance Principal Secretary, Nthoateng Lebona, but was repeatedly postponed. After three consecutive attempts, he physically went to her office on 6 September 2024, only to find she was unavailable. On 9 September 2024, he was again denied a meeting, being told he did not have an appointment.
Mr Fanya argues that the decision not to evaluate Laxton’s bid violates the procurement Act and undermines the purpose of public tendering, which is to achieve better value for goods and services. He claims that competitors had submitted bids more than twice the amount quoted by Laxton.
“The applicant was denied the right to a hearing before being disqualified. The decision cannot be justified. It was arbitrary, and I submit that the decision should be reviewed, corrected, and set aside. There is a need for transparency, especially given the tender’s value exceeding M14 million,” Mr Fanya stated.
Laxton is seeking an interdict to prevent the IEC from proceeding with the tender until the finalisation of their application. They also ask the court to correct and set aside the IEC’s decision not to evaluate their tender and to declare any contracts awarded by the IEC regarding this tender as null and void.
In response, Mphaiphele Maqutu, who is effectively the IEC’s chief executive officer, described Laxton’s application as unmeritorious and an attempt to delay the procurement of a critical tool for voter registration.
“This application is merely a ruse to frustrate the procurement process of a crucial EMIS. The current voter register dates as far back as 2001, and it has inaccuracies, including multiple registrants and misallocated constituencies due to deceased persons. The EMIS is urgently needed,” Advocate Maqutu argued.
He further insisted that Laxton had failed to submit a valid tax clearance certificate, instead providing documents like tax returns and financial statements. When asked to resubmit, Laxton still failed to provide the proper certificate.
Mr Maqutu also argued that Laxton’s application was premature as internal remedies, including an appeal to the Director of Elections, had not been exhausted. Additionally, he stated that Mr Fanya had no legal authority to institute litigation on behalf of Laxton, as he was neither a director nor company secretary.
Mr Maqutu called for the dismissal of Laxton’s application, citing procedural failures, including the omission of a request for the decision-maker to dispatch the record of proceedings that led to the decision under review.
The matter will continue before Justice Moneuoa Kopo on 22 October 2024.
