/ 28 October 2011

North West premier Modise vindicated for intervention

North West premier Thandi Modise was correct to intervene in the department of public works’ multimillion-rand roads tender row because she’s the head of the provincial government, according to the Mafikeng High Court.

Tthe court on Wednesday dismissed an urgent application by the winning service provider Down Touch Investments, who sought a court interdict to stop Modise from “interfering” in the bitter battle for a R93.5-million road construction contract.

Modise ordered a re-evaluation of the tender two weeks ago and issued an instruction for work on the road between Lichtenburg and Koster to be suspended while the provincial government investigates alleged irregularities in the awarding of the tender.

She also put acting head of department Sandile Mbanjwa on “precautionary suspension” for the duration of the investigation, ostensibly to allow the task team to probe the matter.

Modise’s acting spokesperson Lesiba Kgwele said the premier’s office was happy with the outcome of this week’s court proceedings.

“We wish to reiterate that the involvement of the premier and the resolve to re-evaluate the tender was based on a court application by Globul Roads that had alleged irregularities in the awarding of the tender,” Kgwele said.

Globul Roads, a company whose CEO, Zacharia Pitso Tolo, is a former provincial minister of public works and of education, approached the same court at the beginning of this month with an urgent application to stop work on the road, but was struck off the roll on the grounds that it was not urgent.

Globul Roads was of the view that its bid deserved to be the winner because it was R18-million cheaper than that of Down Touch Investments and it alleged that unfair processes could have resulted in the company losing the tender.

“When allegations of serious impropriety are made against a provincial department [and] the provincial administration or North West Government, she [Modise] has material interest as head of the executive. This is unfortunately misconstrued by Down Touch Investment and its lawyers to be interference,” said Kgwele

He added that an investigation ordered by Modise is expected to provide clarity on the lawful nature of the contract awarding process and had nothing to do with the favouring of one service provider over the other.

Modise was accused of favouring Globul Roads because of her friendship with its CEO, Tolo. Both denied being friends three weeks ago.

In an affidavit filed for this week’s court hearing Down Touch had accused Modise of acting “unlawfully and outside the scope and ambit of her powers” by ordering the company to stop work on the contract.

Kgwele said the provincial government would not be intimidated or deterred to seek the truth in this matter.

“It is regrettable that people deem it fitting to litigate against government in order to frustrate an investigation that is necessary in order to disprove or confirm allegations of serious irregularities that have been made,” said Kgwele.

The Mail & Guardian has reported for the past three weeks on the fierce battle for the R93.5-million tender.

Suspending Down Touch will cost the department of public works millions of rands. The company said the department would be liable for daily costs of R217 000, which would amount to more than R1-million a week, for the duration of the suspension.

Down Touch’s lawyer, Hannes Peyper, asked the department for a commitment to pay an additional R5.5-million, should the investigation find that the tender was awarded fairly.