North West Premier Thandi Modise will be forced to defend her political authority in court because she instructed the province’s department of public works, roads and transport to suspend a contract over a disputed multimillion-rand road construction tender.
Modise suspended the contract, won by Down Touch Investments, to build a 50 kilometres stretch of a road between Lichtenburg and Koster on the grounds that another bidder, Globul Roads, had complained that their bid was R18-million cheaper.
Down Touch this week dragged Modise to the North West High Court in Mafikeng to ask the court to interdict her from “interfering” in their work.
The Mail & Guardian has seen a founding affidavit filed by Down Touch chief executive officer Johannes Jacobus Cronje, in which Modise is accused of acting “unlawfully and outside the scope and ambit of her powers” by ordering the company to stop work on the contract because Globul had claimed irregularities in the Âawarding of the tender.
Zacharia Pitso Tolo, the chief executive of Globul, is the former provincial minister of public works and of education.
“[Modise] had no authority whatsoever to suspend the works, to instruct the department to suspend the works, or to instruct the re-evaluation of the tender,” according to Cronje’s founding affidavit. Modise is also accused of acting “in bad faith, arbitrarily and capriciously, for an ulterior purpose and motive, and general ill will, inter alia, based on a deep-seated antipathy for [Down Touch],” reads the affidavit.
Modise’s acting spokesperson Lesiba Kgwele confirmed that the premier’s office was served with court papers.
“The Office of the Premier acknowledge receipt of the court application by Down Touch Investments and are considering the matter. A decision as to what step the provincial government will take will be taken in due course.”
Ongoing battle
The M&G has reported for the past two weeks on the fierce battle for the R93.5-million tender for the construction of the remote rural road. On October 11, Globul took the provincial government to court and argued that it deserved to win the contract for its cheaper tender, but the court declined an urgent application to suspend work.
Said Cronje’s affidavit: “By this instruction [Modise ordering a halt to construction work], Globul Roads received precisely what it had asked and been denied in the court proceedings. When the court application failed, the premier nonetheless intervened at the behest of Globul Roads.”
Modise announced two weeks ago that she was appointing a technical team drawn from the government and engineering sector to investigate the awarding of the tender.
Andrew Kyereh, the new acting head of the department of Âpublic works, informed Down Touch of the suspension last week. The former acting head of the department, Sandile Mbanjwa, was placed on “precautionary suspension” two weeks ago, Âostensibly to allow Modise’s team to probe the matter.
Mbanjwa had failed to implement Modise’s instruction of September 28 to suspend Down Touch’s work.
In court papers, Down Touch calls Kyereh “a mere conduit for the premier’s wishes”.
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 could amount to more than R1-million a week, for the duration of the suspension.
Down Touch’s lawyer, Hannes Peyper, of Peyper Sesele Attorneys, has asked the department for a commitment to pay an additional R5.5-million should the investigation find that the tender was awarded fairly.
Down Touch accused Modise of being “biased” in favour of Globul Roads in her approach to investigating the dispute.
“The premier cannot be allowed to continue with her interference, as she will no doubt stay actively involved in the re-evaluation. She has already made her stance clear, has already judged the issue and the applicant will not be treated fairly.”