Health may appeal R525m tender call

The high court in Johannesburg has granted the provincial health department in Gauteng leave to appeal against a decision in which it set aside a medical waste disposal tender award for more than half-a-billion rand.

The companies will continue waste management services in the interim, pending the Supreme Court of Appeal (SCA) hearing and judgment. The high court ruled it would be “unfair” to expect the department to “scurry around” looking for new service providers for now.

The department granted tenders worth roughly R525m to Tshenolo Waste and Phuting Medical Waste. Losing applicant Buhle Waste contests the award.

In October 2023, Tshenolo Waste was awarded a R314m contract to collect and dispose of medical waste in Tshwane and Johannesburg, while Phuting Medical Waste received a R211m contract for the West Rand, Sedibeng and Ekurhuleni regions.

But in the following month, Buhle Waste urgently applied to the Johannesburg high court to interdict the two firms from starting their services, pending the outcome of a review of the department’s tender awards.

All three companies are 100% black-owned.

Buhle Waste was founded in 1997 by David Sekete and has a long track record of public sector work. It has done work for provincial health departments in Gauteng, Mpumalanga, Limpopo and the Free State.

Tshenolo Waste, led by CEO Malusi Molewa and founded in 2010, also has thousands of projects under its belt. Phuting Medical Waste has been in operation for several years and was an unsuccessful bidder in a contested KwaZulu-Natal health department tender last year, which Buhle also contested.

Buhle argued that the Gauteng department of health had failed to adhere to proper processes when it asked for extensions of the bidding period. This meant awards to Tshenolo and Phuting were unlawful.

For a bidding period to be extended, the department has to request and obtain the consent of all bidders before the period lapses. Buhle said this was not done. It pointed to instances where consent was only sought from bidders the day the bid period was to lapse.

The department argued it had acted properly.

In late November 2023, Johannesburg high court judge Ahmed Cajee agreed with Buhle that the awards were unlawful.

“It is clear that the bid validity period was not validly extended and expired on the 17th of November 2022,” he ruled. “It follows that all further extensions sought and granted thereafter were also not validly extended,” the judge said before declaring the awards to Tshenolo and Phuting as “lapsed” and “invalid”.

The department sought leave to appeal.

On Friday, Cajee granted the department leave to appeal. Cajee said the SCA could find “too long a period had elapsed and too much had occurred subsequently in the furtherance of the tender to justify the order that I granted”. He therefore allowed the department to appeal at the SCA.