Next turn in road saga
EMLM to appeal R99m Fikile Gwadana Drive court judgment
Following a court judgment interdicting the multimillion rand Fikile Gwadana Drive rehabilitation project in Ezibeleni, the Enoch Mgijima Local Municipality (EMLM) has indicated it is appealing the judgment.
“The matter has been taken on appeal and as such, it is still subjudice,” said spokesperson Lonwabo Kowa when asked for the municipality’s response to the judgment this week.
On July 28, the high court in Makhanda ruled in favour of the Independents and the Eastern Cape
Black Contractors’ Forum, putting the project on hold pending a review of the tender process, said to be in the region of R99m.
“Pending the outcome of the review application … Makali Construction Pty Ltd is hereby interdicted from executing any further construction work on the site,” read the court judgment.
The court further interdicted EMLM, municipal manager Nokuthula Zondani and the municipality’s erstwhile administrator, Monwabisi Somana, from “performing any functions and obligations arising from any service level agreements and or contracts concluded with [Makali Construction Pty Ltd] including any payments to the company in terms of the tender process which is the subject of review.”
The municipality, Zondani and Somana were also directed to hand over to the Independents’ councillors and the contractors’ forum, within five days of the order, information relating to the tender process “for the construction of the 6.7km road, Fikile Gwadana Drive”.
These included construction company Makali’s tender document, a copy of the signed special conditions contract between the municipality and the construction company; the bills of quantities for the project, as well as reasons for procedures followed and motivations relevant to the decision to award the tender.
Details of the budget amount that the municipality set aside must also be made available to the applicants.
The court ordered the Independents councillors and contractors’ forum to lodge the review application within 30 days of the order. The judge reserved a ruling on costs.
Confusing amounts and a tender process that lacked transparency were some of the reasons the high court in Makhanda granted the interdict.
Amounts of R68m and R99m for a 6.8km or 9.9km stretch of road, contained in different reports, left the court with no choice but to rule in favour of the Independents councillors and the forum.
The councillors and the forum claim proper procurement processes were not followed. They assert that the award of the tender was not publicised as required by legislation. They contend that “the entire process was shrouded in a veil of secrecy”.
The Makhanda court judge agreed with the applicants, stating: “Contrary to the provisions of the Constitution, the tender processes followed by the [Enoch Mgijima Local Municipality and other] respondents were not costeffective and transparent.”
According to the judge, the feasibility report prepared by Buchule Engineers (Pty) Ltd, the company contracted by the municipality to source grant funding for roads, stormwater and neighbourhood development was unclear.
“The report is, respectfully, not a model of clarity when it comes to what the estimated cost for the total project was. A closer scrutiny of the document leaves one with more questions than answers,” the judge said.
The report stated the total cost for
❝ They [Independents councillors and EC Black Contractors’ Forum] contend that ‘the entire process was shrouded in a veil of secrecy’.
the road was about R10.9m per km or R99.89m for the 9.9km road.
“This unit cost is slightly higher than the going cost as the road is a category B interurban road with wider lanes.”
The judge further stated the section on the reasons for the cost of the road stated that “the majority of the current pavement structure and road profiles require extensive upgrade due to poor drainage so that the design life of 15 to 20 years can be achieved”.
The report further said the entire 6.8km road would consist of sidewalks on one side, concrete kerbs, edge beams, chutes, down pipes and channels which assist in stormwater management and strengthen the life of the road.
The report then stated the cost of R68.6m could further be broken down into three amounts of R9.2m for preliminary and general; R8.6m for indirect costs (engineering fees, survey, geotech, EIA, and so on) and R8.9m for VAT. There were two other blank spaces in the section.
The judge quoted paragraph two of the report, under the subheading “Project Details”: “This project involves the route identification, geometric and pavement design, materials investigation and construction for a length of 7km road and including an adequate stormwater management infrastructure to be constructed.”
In paragraph 10, he said, under sub-heading “Cost Estimation”, the total cost estimate was reflected as R99.971,489.97, with the estimated cost per km reflected as R10.099,130.30.
“Under the sub-heading ‘Conclusion and Recommendations’ the document states that the total length of the road that needs to be upgraded is 9.9km. The total and all-inclusive budget required to upgrade the road with adequate stormwater [drainage] is R99.89m, which includes the construction amount, contingencies, professional fees and 15% VAT.
“It appears there are two separate distances [lengths] of the road for which the total cost of the project was estimated.
“On the one, the report refers to a total of 9.9km at a cost of R99.971,489.97/R99.89m. On the other hand, there is mention of a 6.8km road length and an amount of R68.6m which is further broken down.
“There is, however, no explanation in the report as to why there are two separate road lengths and two separate amounts estimated for the project.”
The judge said even a second report to try and clarify the amounts did not address the discrepancies.
“If one takes this into account, it then gives merit to the applicants’ contention that the costs for the construction of the road in question [6.7km] were astronomical and that the tender processes in so far as the CIDB grading requirements were not followed. Furthermore, given the confusion that the report presents, it clearly cannot be said the processes followed in awarding the said tender were transparent.”
The controversy has sparked unease among local residents with some demanding an explanation from the municipality. See letter on Page 6.