Le­sufi ac­cused of ten­der bias

CityPress - - News - SIPHO MASONDO sipho.masondo@city­press.co.za

A group of 34 small busi­ness own­ers have ac­cused Gaut­eng ed­u­ca­tion MEC Panyaza Le­sufi of foul play re­gard­ing the award­ing of ten­ders to two school feed­ing schemes in the prov­ince val­ued at more than R2 bil­lion.

In a high-stakes lit­i­ga­tion, aimed at re­view­ing and set­ting aside the two ten­ders, the group has gone to the High Court in Jo­han­nes­burg to chal­lenge Le­sufi and his depart­ment.

In le­gal pa­pers filed in De­cem­ber, the group ac­cuses the depart­ment of “nepo­tism, uni­lat­eral and ar­bi­trary ac­tion … which opens the door to cor­rup­tion”.

In the found­ing af­fi­davit, the lit­i­gants claim there were two ten­ders – one of which the depart­ment promised to al­lo­cate to 100 sup­pli­ers in five dis­tricts, and an­other to 20 ser­vice providers in the re­main­ing 10 dis­tricts.

Each of the 10 dis­tricts would be al­lo­cated to two com­pa­nies, say the claimants, adding that no com­pany would be al­lowed to sub­mit bids for both ten­ders.

They also claim Le­sufi promised them that the ten­ders would be ad­ju­di­cated in pub­lic – in keep­ing with the prov­ince’s com­mit­ment to trans­par­ent ten­der pro­cesses – and that pref­er­ence would be given to ex­pe­ri­enced lo­cal com­pa­nies.

The sup­pli­ers are now ac­cus­ing Le­sufi of hav­ing re­neged on his prom­ises.

“By breach­ing all the afore­said, all of the ap­pli­cants’ rights and le­git­i­mate ex­pec­ta­tions have been ad­versely af­fected, and if re­gard is had to the hap­haz­ard man­ner in which ten­der re­quire­ments were breached, the ten­der process un­der dis­cus­sion was not fair,” writes busi­ness­man Lethabo Mak­wela in his af­fi­davit on be­half of the group.

“It is sub­mit­ted that the ad­ju­di­ca­tion process was not only uni­lat­eral and ar­bi­trary, but [also] con­fus­ing, con­tra­dic­tory, prej­u­di­cial to the ap­pli­cants and there­fore, un­law­ful.

“In fact, the ap­pli­cants be­lieve that nepo­tism played a vi­tal role, par­tic­u­larly in the award­ing of ten­ders to com­pa­nies with the same di­rec­tors, and di­rec­tors with the same sur­names and ad­dresses.”

Angie Nathane, a sup­ply chain direc­tor with the depart­ment who filed an af­fi­davit on be­half of Le­sufi, and Ed­ward Mo­suwe, his depart­ment head, de­nied all the al­le­ga­tions.

Nathane ar­gued that the ag­grieved sup­pli­ers were dis­qual­i­fied be­cause they did not sub­mit fi­nan­cial state­ments, pro­pos­als, proof of res­i­dence or fi­nan­cial guar­an­tees.

She dis­missed claims that the depart­ment was re­quired to ap­point only lo­cal busi­nesses and that com­pa­nies had to sub­mit two years’ worth of fi­nan­cial state­ments.

“They make a bland and vague ac­cu­sa­tion that there was nepo­tism in the ap­point­ment of the suc­cess­ful ten­ders, with­out pro­vid­ing any facts to sub­stan­ti­ate the al­le­ga­tion,” she said.

“To me, it is in­dica­tive of the paucity of sub­stance in the ap­pli­cants’ case. “They seek refuge in name call­ing.” How­ever, the group has also ac­cused Le­sufi and his depart­ment of award­ing ten­ders to:

Two com­pa­nies which were reg­is­tered three months after the ten­der ap­pli­ca­tions were due;

Eight com­pa­nies reg­is­tered in 2016 – there­fore, they could not pro­duce fi­nan­cial state­ments dat­ing back two years, as per ten­der re­quire­ments;

Four com­pa­nies with com­mon di­rec­tors and share­hold­ers;

Com­pa­nies from Lim­popo, East­ern Cape and North West after in­di­cat­ing they would go to lo­cal firms; Three com­pa­nies in the process of be­ing dereg­is­tered; and

Ad­ver­tis­ing the ten­ders for two weeks, in­stead of the 30 days stip­u­lated by Trea­sury.

“A fur­ther main con­sid­er­a­tion is that there was no pub­lic ad­ju­di­ca­tion, which, with re­spect, leads to a sus­pi­cion of bias and, in any event, opens the door to cor­rup­tion,” say the lit­i­gants. They have al­ready won round one of the bat­tle.

On De­cem­ber 20, they ob­tained a court or­der in­struct­ing the depart­ment to re­lease de­tailed in­for­ma­tion about the com­pa­nies which won the ten­ders and how these were awarded.

The depart­ment was sup­posed to hand the in­for­ma­tion over by Jan­uary 10.

But on Fri­day, Mpho Sethaba, the lawyer rep­re­sent­ing the ap­pli­cants, said sev­eral at­tempts to ob­tain the doc­u­ments had failed, and they were await­ing a new court date.

Sethaba said his clients ini­tially asked the court to is­sue an or­der for­bid­ding Le­sufi from sign­ing con­tracts with the win­ning firms.

But since that has al­ready hap­pened, they will now ask for the ten­ders to be re­viewed and set aside.

Kwena Se­tati, who filed an an­swer­ing af­fi­davit on be­half of some of the win­ning com­pa­nies, de­nied all the ap­pli­cants’ claims.

Oupa Bodibe, the ed­u­ca­tion depart­ment’s spokesper­son, said: “The depart­ment is aware of the al­le­ga­tions. A group at­tempted to bring a court case on an ur­gent ba­sis last year. The depart­ment will de­fend the case when it comes be­fore the court.”

Panyaza Le­sufi

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