Beach cleaning gets dirty over probe

An on going dispute between the City of Cape Town and a beach cleaning company could be headed for a third round of costly litigation in as many years. Beach Clean Services South Africa has filed a motion in the Western Cape High Court for an application to get the city to release its forensic report into alleged irregularities in the way council officials handled the beach cleaning tender in 2012. It’s alleged that by withholding the report, the city had acted “unlawfully” and has put Beach Clean to “unnecessary trouble and expense” in having to take legal action to get the information. Beach Clean SA wants to see the contents of the report, and is also seeking a punitive cost order against the city. The report, by KPMG, has been held under wraps by the city on the grounds that it contains confidential information that would compromise the privacy of officials.

Ernest Sonnenberg, mayoral committee member for utility services confirmed that the city has filed a notice of intention to oppose and is currently considering its position in relation to the application. Beach Clean applied via the Promotion of Access to Information Act in 2014 for access to the report, but was refused. This third legal challenge comes after Beach Clean SA’s contract for the mechanical cleaning of several city beaches was cancelled because the company had failed to comply with the terms of its service agreement. Beach Clean SA’s Rogerio Viana said his company had been unable to meet its contractual obligations because the city slashed its budget for the work and reduced the contract to just one year. The dispute dates back to 2012 when Beach Clean SA’s bid for a three-year contract to clean 16 beaches was rejected for being nonresponsive. The contract was awarded to a Port Elizabeth-based company, despite Beach Clean having 14 years’ experience doing the job.

Viana raised concerns about the tender process, including his competitor’s access to his confidential pricing information. The matter landed in court and the judge ruled that there was evidence that Khazimla, the preferred bidder, used some of Beach Clean’s pricing information in its tender. The city was ordered to re-evaluate Beach Clean’s bid. The city then appointed KPMG to probe the allegations of tender irregularity. In 2014, Speaker Dirk Smit said the report had found that some officials may have transgressed council rules in the way they considered the tender. No councillors were identified in the report. Beach Clean tried in December to view the KPMG report. This was denied by the city on the grounds that the probe was done to provide legal advice to the municipality. In April this year, Beach Clean lodged an appeal against the city’s decision.

In his founding affidavit, Viana’s legal team, Werksmans Attorneys, argue that there is a “public interest override” provision in the Act. “Having regard to the Speaker’s comments (about the findings), it is apparent that the disclosure of the KPMG report would reveal evidence of a substantial contravention of and/or failure to comply with the law.” The attorneys also pointed out that the city’s own whistle-blowing policy states that while the city will do its best to protect the individual’s identity, there could be a possibility that he or she would have to provide evidence at a hearing or trial. “There is no firm undertaking or obligation in this clause that an individual’s identity will not be disclosed under any circumstances,” noted the attorneys in the affidavit. “In the premises there is no lawful basis for the city to refuse to disclose the KPMG report.”

Meanwhile, the city has cancelled Beach Clean’s contract after the company was fined for illegally dumping sand. In an e-mail to Dr Zandile Mahlangu-Mathibela, the city’s executive director of health, Viana warns the e.coli level on some of the beaches the company was unable to clean – because its contract had been pared down to only three beaches – would put users at risk. “The aeration of the sand significantly reduces bacterial density which is one of the main reasons our services are utilised. It is of great concern that one official and the city’s legal department can be so determined to compromise us. The action of these officials are putting the health of ratepayers at risk.” But Sonnenberg said: “The city would like to assure residents and visitors that there is absolutely no cause for concern about conditions on the beach due to limitation in mechanical cleaning of beaches.”