A Johannesburg civil engineering consulting company is suing the Gauteng department of transport and public works for R6-million in the Equality Court, arguing that the department still favours white over black firms.
The case is one of the first in which a provincial government is being sued by a black company for not implementing an affirmative procurement policy.
In papers before the Equality Court in Johannesburg, Manong and Associates say that the department and its two subdivisions, transport (Gautrans) and public works, have an affirmative procurement policy but have not adhered to it. The papers cite only one instance where a black consulting firm received business from the department.
The department denies that it is “perpetuating unfair discriminatory practices of the past”. In its responding affidavits it points out that Manong has benefited three times from public works programmes. Manong rebuts this, saying the projects referred to were pro bono (not paid for).
Responding to the allegation that Manong was “strangely” excluded from the database of the department’s service providers, Gautrans notes in its papers before the court that some time in 2002, while updating its database, “some of the information was not captured and a number of people who were affected as a result thereof brought this to the attention of the department and it was rectified”.
Gautrans argues that because it has fewer projects than the number of consulting firms on its roster “it takes a long time to give every firm even one appointment. There are a number of firms, including white-owned, that, to date, have not received a single appointment. The appointments for consultants are based on a roster; consultancies need not tender for work.”
Manong says it has arrived at the R6-million figure because the white firm given the work was paid that amount. If the department had followed its own affirmative procurement policies, such monies would have been paid to a black firm.
“Over a period of over three years [2000 to 2003] a [white] firm called VKE Consulting Engineers [appearing number 38 on the roster] received more than R6-million in fees from Gautrans.
“In the same period, a firm called Semenya Furumele Consulting [SFC], [which was number 28 on the list] received only R80 000. SFC is the biggest African firm in Gauteng and according to the department’s roster it is classified as a priority population and therefore entitled to rotate faster than VKE, a non-preferred firm.” Manong further alleges that SFC was the only black consulting company to get a contract from the department.
The department defends the payments to VKE, saying the R6-million was for seven projects and that the work was given to VKE before Manong was listed on its panel.
Furthermore, VKE had black partners in three of the projects “meaning that both VKE and the [black] firms received high fees”.
Manong also charges that the department hides behind size in allocating contracts to white firms.
The transport department, unlike public works, differentiates companies into two panels. One consists of firms that have previously done work in excess of R25-million and which have a partner with more than 10 years’ experience. The second is made up of firms that have previously done work with a minimum value of R12,5-million and which have a partner with more than five years’ experience.
“Needless to say, because of the economic inequalities that were generated by the systematic entrenchment of racial discrimination in the past, the majority of firms in the [first panel] will be white and those in the [second panel] will be black,” Manong argues.
“It goes without saying that firms that have never had the opportunity of having previously done work with a value in excess of R12,5-million will never be admitted to the roster of Gautrans.
“It does not require a rocket scientist to observe that the majority of such firms will be black.”
“What we African firms have found is that whatever proven experience we may have our firms always receive small projects, while non-African firms are assigned to more lucrative and rewarding contracts,” read the papers before the court.
“It is a disgrace and an embarrassment that after a decade of achieving our freedom and liberation, an organ of state, which is led by an [African National Congress] politician, should devise and implement policies that are racist in nature.
“Gautrans, and [provincial minister Ignatious Jacobs] in particular, owes an apology not only to [Manong] but to all black consultants for implementing such policies.”