Lesufi accused of tender bias
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.”