By Billy Ntaote | 3 March 2025
On January 8, 2025, hopes soared when Lesotho’s Health Minister, Selibe Mochoboroane, handed over a plot of land for the construction of a much-anticipated M800 million (USD 43 003 192) cancer treatment facility.
This government-funded facility, to be built in the capital, Maseru, would be the first of its kind in the country and would alleviate the suffering of Lesotho’s growing number of cancer patients, who currently have no choice but to seek costly cancer treatment in neighbouring South Africa.
However, things aren’t as exciting or straightforward as the politicians make them seem. The process of awarding the tender to build this facility is being challenged in court. The Malawian company, Plem Construction, was selected as the winning bidder in April 2024, but the rival bidder, Unik Construction Engineering Pty Ltd., believes the process was flawed and has asked the Constitutional Court to intervene.
Despite this, the Lesotho government and the winning bidder, Plem Construction, appear unfazed by the legal challenge. They are proceeding as if the lengthy legal battle over the bid and its integrity doesn’t exist.
Amid much celebration and ululation from healthcare workers and cancer patients at the land handover on January 8, Minister Mochoboroane did acknowledge the difficulties the tender process is facing. He declined to discuss the ongoing legal disputes in detail and proceeded with the land handover to Plem Construction.
Soon after the celebrations, a fence was erected, signalling that Plem Constrcution had started work preparing the site.
Legal Challenge
Unik’s main objection is that the tender process was irregular, that Unik should never have been disqualified, and that Plem Construction’s bid was flawed. As a result, Unik believes that Plem Construction should not have been named the winner of the M800 million contract in April 2024.
The matter, which is now before the Constitutional Court, is being driven by Gang Wang, a Chinese national and Managing Director of Unik Construction Engineering Lesotho Pty Ltd. Unik is joined in this matter by its sister company, Unik Construction Engineering Pty Ltd, registered in Botswana.
Unik argues that the main legal flaw in the tender process was that the tender was guided by the outdated Lesotho Procurement Regulation of 2007, which had been replaced by the new Public Procurement Act No. 3 of 2023. Unik also believes that the ministry’s debriefing process, aimed at explaining why Unik had been disqualified, was inadequate and lacked transparency.
While the company believes it has a right to see documents that provide a clear explanation as to why its bid was rejected, Unik also argues that Plem Construction’s bid failed to meet key requirements, including documents related to their joint venture with a local Basotho-owned company.
Unik notes that during the tender opening, Plem Construction did not comply with the prescriptive requirements outlined in Section 91 of the Public Procurement Act in full.
These, Unik states, include:
(a) They did not submit a letter of intent to form a formal Joint Venture (JV). According to the tender document, they were required to form a JV with a local Basotho-owned company (Category A, with a minimum 40% contract share). There was no evidence supporting their eligibility in this regard.
(b) The representative of “Plem Construction” was instructed to disclose the Joint Venture documentation, but they failed to do so, thus failing to comply with the tender requirements.
MNN approached Plem Construction with questions and a request for comment. Although this correspondence was read, the company has not responded to MNN by the extended deadline.
Health Ministry’s Principal Secretary, ‘Maneo Ntene, responded to Unik’s concerns in a letter dated April 19, 2024. “Regarding Unik’s evaluation outcome, it is essential to note that the minimum qualification requirement for this tender bid was set at 70%. Unfortunately, Unik’s evaluation fell short of meeting this threshold. As a result, their bid was disqualified,” she wrote.
“Regarding your request for the evaluation report informing the decision, we understand the importance of transparency. However, we regret to inform you that sharing the requested documents is not feasible due to the presence of commercially sensitive information related to other bidders. Our duty is to safeguard this confidential data and maintain the integrity of the procurement process.
“Nevertheless, we are more than willing to discuss the merits of Unik’s proposal without compromising the confidentiality of other bidders,” Ntene stated.
Ntene also argued that Plem Construction’s intention to form a formal Joint Venture (JV) was not a subject of discussion, nor was it ever read out. It was also not mandatory to include JV details, as the subcontractor is not assessed at the technical stage, only before signing the contract.
Unik is not satisfied with this response. The company filed an appeal to the Procurement Tribunal. However, this body has not been functional since December 2023, as the government has yet to appoint members to it. When Unik was unable to approach the tribunal, it sought the High Court’s intervention, asking it to nullify the cancer treatment centre’s construction by Plem Construction.
In his judgment, delivered in July 2024, Judge Moneuoa Kopo of the High Court’s Commercial Division ruled that Unik should wait until the Procurement Tribunal was functional.
He noted: “While I accept that the absence of a manned Tribunal can be the same as the refusal of justice, I have to take into consideration that preparations are advanced to have the Tribunal manned.”
Justice Kopo added that Unik “will still have its day in the Tribunal” and noted that preparations for these appointments are at an advanced stage. He continued: “I will lean towards allowing the ministry to man the Tribunal and handle the complaint as the legislature had intended.
“The relief open to the Applicant in the Public Functionary is still possible. The delay in setting up the Tribunal or not being vigilant in ensuring that the tenure of office of members of a transitional tribunal is renewed has not rendered the remedy impossible.”
However, the delays in appointing members to the public procurement tribunal continued. On September 3, 2024, Unik once again approached the High Court for help. This time, the court ordered Finance Minister Dr. Retselisitsoe Matlanyane to expedite the appointment of the tribunal members.
“The recruitment process leading to the appointment of members of the public procurement tribunal will be promptly completed by September 30, 2024,” reads part of the court order granted to Unik.
The ruling also ordered the Attorney General, who was cited as the third respondent, to ensure that Unik’s case was heard by the tribunal within seven days of its members being appointed.
While the finance ministry told MNN that processes leading to the appointment and resumption of the Procurement Tribunal’s work were ongoing and that announcements of the panel would soon be made, by December 2024, the tribunal members were still not appointed. Unik then asked the Constitutional Court to step in and suspend the implementation of the tender award to Plem Construction, as well as to stop all further work on the cancer facility until the legal challenge is resolved. The Constitutional Court case is being heard by a panel of three judges, including Chief Justice Sakoane Sakoane, Justice Tseliso Mokoko, and Justice Dr. Itumeleng Mamokhali Shale. Unik is also supported in the case by several joint venture partners, including companies from Lesotho, Botswana, and China. The Health Ministry’s legal team, led by Advocate Mosito Tsoeunyane, has indicated their intention to oppose Unik’s case.
This story was produced by the MNN Centre for Investigative Journalism and syndicated by the IJ Hub on behalf of its member centre network in Southern Africa.
