North West Premier Thandi Modise will continue to stop construction work on the Koster and Lichtenburg road and review the tender, despite the court throwing out an urgent application by a disgruntled company that lost the R93.5-million contract.
The Mail & Guardian reported last week that Modise has found herself at the centre of a row over the tender and that her intervention in the matter was questioned by some role players. But she denied this, accusing this newspaper of tarnishing her image.
The North West High Court in Mafikeng this week dismissed with costs — and without an option to appeal — an application for an urgent interdict by the losing bidder, Globul Roads. Judge Nadia Gutta struck the case off the roll, saying it was not urgent and work on the road should continue.
Gutta also found that Modise should not have been added as a respondent because she had no authority to oversee the project, and that Globul had created unnecessary urgency by addressing letters of complaint to Modise’s office and not the relevant department of public works, roads and transport.
Modise’s acting spokesperson, Lesiba Kgwele, told the M&G that the court decision would have no effect on the premier’s decision to review the tender. “The decision is based on reasons that there are clear indications of wrongdoing, which must be investigated,” he said.
The dispute over the tender resulted in Modise last week suspending the acting head of the department, Sandile Mbanjwa, while the bid was evaluated again.
A legal representative for Globul, Jorg Frese of Frese, Moll & Partners, told the M&G that it was unfortunate that the company had lost the first court bid. He said what Globul was asking the court to do had already been done by Modise.
“When she [Modise] saw our application she decided on her own to suspend work on the project. Because of that we are still in the same position we had wanted to be,” said Frese.
Globul, which has former provincial education minister Pitso Tolo as its chief executive, maintains that the company should have won the Âtender because its bid was R18-million lower than the winning bid.
Review of the bid adjudication committee
The second part of the company’s court application, which seeks a review of the bid adjudication committee that presided over the tender, is yet to be heard.
Frese said the request for a review might take months before it is heard.
“There have to be further affidavits and more supporting documents filed. There are still going to be papers exchanged for the review — it’s going to be a long process.”
Those opposed to Modise’s decision to suspend work on the project say the job could be completed by the time the court hears the application to review the bid adjudication committee. The winning bidder, Down Touch Investments, has five months left to complete the road construction.
This week Modise’s office mounted an offensive on its Facebook page against the report carried in last week’s M&G. The post said the reported unhappiness with the premier’s involvement in the tender spat was “desperate pre-emptive strategies to try to unnerve and intimidate the premier into inaction”.
Two sources who preferred to remain anonymous had alleged that Modise was taking sides in the matter in favour of Globul Roads.
Down Touch CEO Johan Cronje told the M&G that the company was happy with the court ruling. Work on the site was not suspended despite Modise’s instruction last week to do so, and Cronje said 14% of the work had already been completed.
“We never got off site because we were still waiting for a letter from the head of department [Mbanjwa], but then he was suspended. There was no need to suspend work,” said Cronje.
But Down Touch is likely to be ordered away in a matter of days. The newly appointed acting head of public works, Andrew Kyereh, has signed a letter to the contractor that suspends all construction work “as per the directive of the premier and the executive council”, said Kgwele. “We therefore do not expect any work to be continuing on the affected road.”
Modise will continue to be involved in the matter despite the court ruling that she does not need to, because “the executive authority of the province vests in the premier in terms of the Constitution”, said Kgwele.
“That [court decision] does not mean that the premier should not get involved in the matter at all. Where there appears to be conduct that may put a blemish on the provincial administration, the premier is within her authority to act accordingly and crack the whip.”
The department did not respond to email questions.