Mbabane – The High Court has dismissed the Eswatini Consumer Forum’s (ECOF) urgent application seeking to halt construction of the Central Bank of Eswatini’s new headquarters at Ezulwini, ruling that the organisation had no legal standing to bring the case.
Justice N.M. Maseko yesterday upheld a preliminary point raised by the respondents on locus standi (legal standing) and dismissed the application with costs on the attorney-and-client scale against the deponent and/or the organisation’s directors in their personal capacities.
ECOF had sought an urgent interdict stopping construction of Phase One of the CBE complex, preventing further payments to the contractors and reviewing the tender award to Ingcebo Joint Venture. The application also sought to challenge several aspects of the procurement process and the registration of the joint venture.
In his ruling, Justice Maseko said the application could not proceed because ECOF had failed to establish that it had the legal right to institute the proceedings.
The court found that although ECOF described itself as a public interest organisation, it had not demonstrated a direct and substantial interest in the dispute or identified any specific members who had suffered harm.
Justice Maseko also found that the organisation failed to attach documents necessary to establish its legal standing, including its certificate of incorporation, constitution and a resolution authorising the litigation.
“The manner in which the issue of locus standi has been addressed by the applicant presents an unavoidable deficiency,” the judge said.
He added that a party bringing court proceedings must establish a direct legal interest and cannot rely on general allegations made on behalf of the public.
The court also rejected ECOF’s argument that its participation in the Construction Industry Council stakeholders’ forum gave it authority to institute legal proceedings.
Justice Maseko said Section 19 of the Construction Industry Council Act only provides for stakeholder consultation and does not give members of the forum the right to sue the council.
The judge further held that the application bore the characteristics of an actio popularis litigation brought in the general public interest without demonstrating a direct legal interest which is not recognised under Eswatini law.
The ruling also criticised the manner in which the urgent application was brought, saying respondents were given oppressive and prejudicial timelines to prepare their responses after being served with the bulky court papers only days before the hearing.
Justice Maseko noted that ECOF relied on information from an anonymous whistleblower alleging corruption in the tender process, but admitted in its own papers that it had no evidence of corruption and was still assessing the allegations.
The judge said despite acknowledging the lack of evidence, the organisation proceeded with urgent litigation, forcing the respondents to incur legal costs at short notice.
The respondents in the matter were the Construction Industry Council, Central Bank of Eswatini, Eswatini Public Procurement Regulatory Authority, Ingcebo Joint Venture, Stefanutti Stocks Eswatini (Pty) Ltd, Stefanutti Stocks Construction Eswatini (Pty) Ltd and the Eswatini Contractors’ Association.
Discussion about this post