Judgment reserved in Beitbridge fence case

THE Special Tribunal yesterday reserved judgment in the R40million Beit Bridge border fence case where the Special Investigating Unit (SIU) wants payment to the two companies that won the now contested contract to be withheld.

The tribunal’s judge, Lebohang Modiba, said she had a lot to consider and refer to in terms of case law and other previously decided cases.

She added that the judgment would be ready either by the end of the year, or early next year.

When the hearing started, the SIU and Department of Public Works wanted a postponement, saying they intended to call specialist witnesses, but Judge Modiba dismissed their application, setting the entire process in motion. It then emerged that some of the witnesses opted out of the process, saying they feared for their lives if they eventually testified.

In the main, the SIU and department want the payment to Caledon and ProfTeam to be withheld as the contract was illegally awarded and, as such, they should not be allowed to benefit from it.

The R40m contract to build the 21km-long fence between South Africa and Zimbabwe was awarded in March last year, days into the Covid-19 lockdown. The fence plan drew outrage when it emerged that despite the money spent on it, it started to fall apart within days, allowing the illegal movement of people between Zimbabwe and South Africa to continue.

The national Assembly even had to assign a committee to inspect the fence, and it was from there that standing committee on public accounts chairperson Mkhuleko Hlengwa said the job had been badly carried out.

A total of R21.8m has already been paid to Caledon River Properties (trading as Magwa Construction) and ProfTeam Construction, and the SIU wanted the rest of the money not to be paid and to preserve the money that had already been paid.

During the hearing yesterday, it also emerged that the two companies were paid in advance, and the reason given was that due to the hard lockdown at that time, it would take time to sign and pay invoices as staff movement was severely limited.

Advocate Ishmael Semenya SC, who represented the SIU and the Department of Public Works, said that there is no contention of the work that was done.

However, he said the contest was whether they could be compensated for an irregular contract. He added that the enforcement of the invalid contract would breach the principle of illegality, and in the context of public procurement priority should be given to the public good, which talks to constitutional parameters and injunctions.

Firing back, advocate Etienne Theron SC, who represented ProfTeam, said his clients had been subjected to character assassination despite delivering on the contract.

He said that during the project, a professional engineer was on site daily and updated the department.

Theron added that the the contract had been executed in full, and that the department got what it wanted with the money agreed to.

He also told the tribunal that the proper construction of the fence would have cost more than R300m, and his clients had performed according to the specifications.

Advocate Scheepers SC who represented Caledon, submitted to the tribunal that his client was informed that the invoices would be submitted before time as there would not be anyone to process them during the lockdown.

He stressed that the maintenance of the contract was not part of their scope, and that it should have been up to the department to do that.