The Rep

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.

 ?? MJEKULA Picture: LUVUYO ?? CONSTRUCTI­ON DELAYED: The site of the Fikile Gwadana road rehabilita­tion project in Ezibeleni has been inactive since the high court in Makhanda granted an interdict to halt work pending a review of the tender process
MJEKULA Picture: LUVUYO CONSTRUCTI­ON DELAYED: The site of the Fikile Gwadana road rehabilita­tion project in Ezibeleni has been inactive since the high court in Makhanda granted an interdict to halt work pending a review of the tender process

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