Judge tears into metro

A KwaZulu-Natal judge has ordered the eThekwini Council to probe its procurement officials, sounding an alarm about the possibility of corruption in awarding an R864 million pipeline contract.

“. . .The actions of eThekwini’s officials amount to gross negligence, sheer incompetence or lack of capacity,” said Judge Daya Pillay, of the Pietermartizburg High Court, in a searing indictment after he ordered a huge tender for the Western Aqueduct be stopped. “Having found that the officials were intransigent and that they acted in bad faith, corruption cannot be ruled out.” Officials had been biased in the tender process, he said. Their actions had been procedurally unfair. “They considered irrelevant factors and disregarded relevant factors. “Their actions were not only irrational, but also unconstitutional and unlawful,” the judge said. “This case typifies how not to conduct procurement.”

Citing unreasonable and unconscionable conduct of these officials, the judge ordered that a copy of the judgement be served on Mayor James Nxumalo. The mayor should table the judgement before the council, he said, and the council should consider it with a view to an investigation into the officials’ conduct in awarding the tender for Western Aqueduct Phase Two. The council should also look at recovering the costs eThekwini had incurred from those officials found guilty of misconduct or acting unlawfully. Pillay was giving reasons and remedies yesterday after he set aside on September 30 the tender awarded to a joint venture between Esorfranki Pipelines and Cycad Pipelines. He declared the process illegal and invalid.

He said eThekwini officials had breached the law several times. The illegality and consequent procedural and substantive irregularities were precisely the sort that the country’s Constitution and laws sought to prohibit. “A fair procedure is not only one that ensures transparency and competitiveness but also one that is free of the slightest whiff of corruption,” he said. Their violations were so serious that an observation that the high standards set in the Constitution and relevant law “seem to be honoured more in the breach than in the observance, is an understatement”. Pillay said the impact of awarding a tender unlawfully was that it could not shake off the stench of corruption that accompanied it, however well-meaning the involved officials might be.

“Not only the officials but the administration itself becomes suspect and vulnerable to attack from the community the administration is meant to serve. Unsuccessful tenderers also want justice.” The rejected tenders were Sanyathi Civil Engineering & Construction, Phambili Pipelines and Group Five Construction. They turned to the court to stop the award for about 50km of steel pipeline from Inchanga Station to Ntuzuma. Pillay noted that eThekwini had awarded the contract at least seven months after a High Court decision had declared invalid the regulations in terms of which the municipality had invited tenders. They had been found to be inconsistent with the Preferential Procurement Policy Framework Act.

“The invalidity of the notice to tender was not a formal, superficial irregularity but a fundamental illegality,” the judge said. On an earlier appeal against the award to eThekwini authorities, the judge said if metro officials had undertaken an objective and frank assessment of their own list of (law) authorities, “they would have come to no other conclusion that the process was invalid and had to be restarted”. Although a measure of institutional bias was predictable when an official of an institution had to adjudicate a matter in which that institution was a party, “such bias exceeds the bounds of tolerance when officials fail to apply their minds professionally, competently and, most of all, constitutionally. “eThekwini’s disregard for the constitution and all the authorities, including its own citations, is breathtakingly brazen.

“Not only does its selection imply bias on the part of the appeals authority but by providing seriously misleading reasons for its decision the appeals authority opens itself to a charge of mala fides (bad faith),” Pillay said.