The Johannesburg Equality Court has found the Gauteng transport and public works department (Gautrans) guilty of favouring white big business at the expense of black-owned concerns, despite the department’s affirmative procurement policies.
The judgement, in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, marks the first time that a government department has been taken to court to account for whether affirmative procurement policies have been followed in the way it dishes out contracts.
Manong and Associates, a Johannesburg civil engineering consulting firm, took the department to the Equality Court, saying the continued employment of a specific white firm was unfair and discriminatory.
”It would appear that appointments are made arbitrarily, without due regard to any selection criteria,” said the court.
In terms of government policy, consultants in certain skills categories are not required to tender, but are placed on a roster once they have met the standards set by the department. The consultancies are then rotated, with an entity going to the bottom of the roster once it has received work from the department.
The court found ”not only did Gautrans remove the complainant’s name from the panel, but it appointed firms of consulting engineers that previously benefited from discriminatory policies prevalent in this country prior to 1994. [Gautrans’s] purported justification for the non-appointment of historically disadvantaged consulting firms, that there are insufficient projects to grant every firm of consulting engineers an appointment, is incongruous. The regular appointment of [white-owned] VKE shows that there are sufficient projects,” read the judgement.
”There is nothing to show that the complainant, who is listed on the panel as a small firm, would not have been able to successfully complete the projects awarded to VKE, a large firm with between 500 and 800 permanent employees,” noted magistrate HR Viana.
He also found that because Gautrans failed to adhere to policy, the department was merely ”paying lip service to equal opportunity appointments, since Gautrans continues to adhere to previous patterns of appointments.
”It cannot be said that the Gautrans policy contains a rational manner in which appointments are regulated and therefore the Gautrans policy should be subjected to an audit.”
Manong had claimed R6-million from the department, saying that was the amount paid to VKE and, had the department followed its own policies, that amount would have been paid to Manong. The court did not, however, make a ruling in terms of how much money would be paid to Manong. It instead called for the parties to provide heads of arguments justifying the payments they thought fair.
Thabo Masebe, spokesperson for Gauteng Premier Mbhazima Shilowa, said the premier’s office could not comment on the specifics of the judgement as it had not yet studied it. Masebe said, however, that affirmative procurement formed the cornerstone of the government’s black economic empowerment strategy.
”At the beginning of his [second] term in office the premier made it clear he was going promote affirmative procurement policies and promote broad-based black economic empowerment and look into ways of promoting small and medium enterprises. We are very serious about that.”
He said the Government Shared Services Centre, which was tasked with the bulk of government procurement, had, together with the finance and economics department, instructed all government departments to adhere to these policies.
Professor Shadrack Gutto, a member of the Equality Laws Committee, said the decision was a victory for social justice and equality. ”It will send a strong message, not just to individuals but to all natural persons [such as companies].”
He said Manong’s success lay in its ability to show a pattern of giving a specific firm preferential treatment.
Gutto said the judgement should serve to distinguish between the government and management of state resources. ”Even if government is ANC-led, it is not necessarily ANC-managed. Sometimes management is still in the hands of people from the old order.”