/ 21 February 2020

Tshwane water woes in court again

Water Delivery in Hammanskraal (Delwyn Verasamy)
Counting costs: Last year the Human Rights Commission declared the water in Hammanskraal unfit for human consumption and the municipality has had to spend millions delivering water to residents. (Delwyn Verasamy)

The tender to fix the wastewater treatment plant at the heart of the Hammanskraal water crisis has hit yet another snag.

Two weeks ago it emerged — through a media statement issued by Parliament — that the City of Tshwane has cancelled a contract to urgently refurbish the Rooiwal wastewater treatment plant, which has been leaking untreated sewage into Hammanskraal’s water system.

Rooiwal Water treatment
Poisoned chalice: The Rooiwal wastewater treatment plant has been allowing untreated sewage, containing E.Coli and nitrates, to leak into the water of Hammanskraal’s taps. (Delwyn Verasamy)

But a new court challenge by the entities awarded the contract contends that there are “sinister forces” working to derail the contract.

The refurbishments of Rooiwal are long overdue. The water crisis in Hammanskraal, north of Pretoria, has spanned almost a decade.

Hammanskraal residents have complained that the water has made them sick. In August last year, the South African Human Rights Commission, based on findings by the Council for Scientific and Industrial Research, declared the water in Hammanskraal unfit for human consumption.

An analysis of samples found traces of E. coli and nitrates in the drinking water supplied to Hammankraal residents.

Meanwhile, the City of Tshwane has reportedly spent millions on trucking water to residents. In November last year, MMC for Utility Services Abel Tau told the SABC that the City was spending R6-million a week on water tankers.

A resident collects water in Hammanskraal
Residents have had to collect water from alternative sources. (Delwyn Verasamy)

The tender to fix Rooiwal was awarded in September.

After a site visit to Rooiwal earlier this month, chairperson of Parliament’s portfolio committee on human settlements, water and sanitation, ANC MP Machwene Semenya, called the “snail’s pace” of the City of Tshwane’s intervention “unacceptable”.

The tender, which was first advertised in June 2018, was finally awarded in September last year. The refurbishments were expected to start in October. But, after multiple extensions to the bidding process, the awarding of the R291.4-million was challenged in court.

Now another court challenge has been launched, this time by the joint venture which was awarded the now cancelled contract.

According to Parliament’s statement, the contract was cancelled after the contractors were deemed “incapable of delivering the work”.

“While we welcome the fact that the City of Tshwane acted swiftly to cancel a contract with a contractor that is unable to deliver on work to limit substandard work, it is concerning that the bid evaluation committee was unable to detect deficiencies at evaluation stage,” the statement reads.

“A thorough investigation must be done with adequate consequence management at the completion of the investigation.”

But in an affidavit to the Pretoria High Court, Rudolf Schoeman of CMS Water Engineering — one of the three entities in the joint venture (JV) — accuses the City of Tshwane of misleading the portfolio committee.

According to Schoeman, during a project meeting in October the City agreed to appoint an engineer to oversee the execution of the renovations and to produce engineering drawings.

But to date the City has not appointed an engineer “with the result that the actual construction work on site cannot commence”, Schoeman’s affidavit reads.

A construction work permit is also yet to be issued, Schoeman alleges.

At the end of January this year, the City of Tshwane’s group head of utility services Stephens Notoane alerted the joint venture of its intention to terminate the contract. The letter, contained in court papers, cites the joint venture’s failure to register as a vendor as the reason for the termination.

In his affidavit, Schoeman denies that the delay in the registration of the joint venture constitutes a breach of the contract. A lawyer’s letter responding to Notoane notes that the allocation of the vendor number was delayed because of problems getting the joint venture’s banking details verified.

“In any event, the difficulty was resolved, and the COT [City of Tshwane] vendor portal was updated with the result that the vendor registration was finalised.”

The lawyer’s letter ends: “We trust that this matter can be resolved amicably and we wish to place on record that our client is eagerly awaiting the implementation of this contract so that the tremendous prejudice the relevant communities are suffering due to extensive pollution of water resources can be ameliorated.”

According to Schoeman, the joint venture received no further formal correspondence from the City.

“The information that was provided to the committee was clearly false and was a direct attempt to mislead the committee,” Schoeman’s affidavit reads. “The members of the JV all have extensive experience in the execution of civil, mechanical and electrical engineering projects and the suggestion that the JV is unable to perform the work is plainly untrue.”

Schoeman further contends that it has “become clear that there are sinister forces operating behind the scenes, which clearly have the aim of derailing the implementation of the contract awarded to the JV”.

According to the statement from Parliament, the City has now signed a memorandum of understanding with Ekurhuleni Water Care Company “to assist with the operation of Rooiwal”.

“What is clear is that there are various unscrupulous parties that potentially stand to gain from the cancellation of the contract and from a resultant delay, to the detriment of the community,” Schoeman’s affidavit reads.

“This may include unsuccessful bidders, as well as other service providers who currently benefit from the current crisis. In the absence of concrete evidence, I do not wish to implicate anyone in particular, but with regard to my general statement in this paragraph, I would suggest that the facts speak for itself.”

In November last year, the Mail & Guardian reported that court action by Bicacon, one of the entities that lost out on the multimillion-rand contract, cast doubt on the City of Tshwane’s decision to appoint the joint venture.

In an affidavit to the Pretoria high court, Bicacon executive chairman Thabiso Lekoana claimed the firm received a copy of the City of Tshwane’s bid evaluation committee report for the Rooiwal tender from a “whistle-blower” inside the municipality.

The report shows a joint venture between CMS Water, NJR and Blackhead Consulting beat out seven other companies to win the tender. But Lekoana questioned the eligibility of the joint venture.

According to Lekoana, only those firms who are registered with the Construction Industry Development Board (CIDB) are eligible to submit tenders.

The bid evaluation committee report indicates that the tender in question is for category 9CE [civil engineering] and 9ME [mechanical engineering] CIDB-registered contractors. Grade 9 contractors are eligible to apply for the highest-valued tenders. Blackhead Consulting is not CIDB registered.

In September, the court dismissed this element of Bicacon’s initial application because Blackhead, as a consultant, is not part of the construction element of the joint venture.

At the time of the M&G’s initial report on the contract, spokesperson for the City of Tshwane Lindela Mashigo addressed concerns about the delays in finalising the Rooiwal tender. “The BEC [bid evaluation committee] had 59 tenders to evaluate and finalise before it could consider the Rooiwal tenders. The number of tenders for evaluation and volumes of submissions caused the delay in finalising the tender.”

In response to questions by the M&G about the contract’s cancellation, Mashigo said on Monday: “Please note that this is a legal matter, for now, therefore the City cannot comment as the matter is sub judice.”