Gauteng’s R500 million medical waste tender lapsed two days before the provincial health department requested validity extensions from the bidders, the presiding officer said.
Judge Ahmed Cajee said his calculations showed that the tender’s 90-day validity period expired on November 17, 2022 – not November 17 – as claimed by all parties in their court documents.
Buhle Medical Waste, the incumbent service provider, has applied for an urgent interdict to stop the department from implementing the award of a disputed tender to Tshenolo Waste (PTY) Ltd and Phuting Medical Waste Management (PTY) Ltd.
It argues that the department’s supply chain processes were flawed and illegal and had been manipulated by some officials to favour Tshenolo and Phuting. Buhle wants the court to prevent the department from appointing the two companies pending the outcome of a review application.
In his opening remarks at the South Gauteng High Court on Tuesday, November 21, Judge Cajee insisted that the tender had long expired when the Gauteng Department of Health asked some bidders for validity extensions on November 18, 2022. The tender was advertised on August 19th, with a 90-day validity period.
During an exchange with Adv Sesi Baloyi SC, for Buhle, Cajee said if his calculations were correct, there was “no point” in having the case in court to begin with
He said, by law, state entities cannot ask for validity extensions after the tender period lapsed.
“But when I count 90 days, that figure, it appears, is the 17th of November 2022. And if you only received a request for an extension of validity, as you allege in the founding affidavit, on the 18th of November, If that is the case, that’s the end of this matter because they can’t extend the bid validity after the lapsed period. [You are alleging in your founding affidavit] that the tender lapsed on the 19th, but according to me, that was on the 17th. Where does that 19th of November come from? Surely, you can look at your calendar,” maintained Judge Cajee.
In response, Adv Baloyi SC conceded that “it has to be the 17th”, adding, “but we only received a request for an extension of the validity on the 18th”.
Judge Cajee added: “Be that as it may, it is not denied by them, It is denied by me. Please check that 90 days for me, I might be wrong, but if we are working on 90 days from the 19th of August, that’s the 17th.
Adv William Mokhari SC intervened for the Gauteng Department of Health, saying Judge Cajee’s new expiry date had caught him by surprise. He requested an opportunity to consult his clients and take instructions on the way forward.
“Your Lordship, and my learned friend, regarding when did this [tender] lapse, this has caught us off-guard because, as we understand the case, on common cause fact, it is accepted that, even on the applicant’s version, that the previous extension, the applicant does not have a problem with it. They are only attacking the recent extension, which is the one of the 27th,” Mokhari contended.
However, Judge Cajee said that was because, “technically speaking”, Buhle Medical Waste were under the impression that the tender lapsed on November 19th.
“But when I count the 90 days, and that is in the document itself, that period would have lapsed on the 17th, am I right?” he asked Mokhari, who said, “Well, I don’t know”.
“When we prepared our case, we were not looking at that date at all. We were only looking at what is in this case, between the parties. So, I am going to suggest that if that is something that Your Lordship would want to look at, despite the fact that it was not part of the dispute between the parties, we be afforded an opportunity to take instructions and file an affidavit,” Mokhari added.
Asked when he believed the 90-day period had lapsed, Mokhari said he “did not even engage with it” because he and his client thought it was a non-issue.
He urged the court to focus on the case’s merit since the tender expiry date was not part of Buhle’s disputes.
“If it was, then we would have engaged with it. So it would seem that the appropriate thing would be for Your Lordship to tell the applicant to file, if Your Lordship would really want to engage with that issue. But I would say, myself, that Your Lordship should only focus on the issue, which is the most recent extension,” Adv Mokhari stressed.
Adv Richard Solomons SC, for Phuting, shared Adv Mokhari’s sentiments. He said the court should distinguish between extending the tender and extending the validity of the bid.
After a short adjournment, all parties agreed to proceed with the case.
Adv Baloyi said Buhle’s application had two parts. Part A sought an order declaring the render invalid and setting it aside, and Part B is a review application seeking for the tender to be declared unlawful.
She said it was “factually incorrect” that the department awarded the tender on September 15th. Adv Baloyi said the only thing that happened on that day was a public meeting between bidders and the bid adjudication committee, as required by the provincial laws.
However, the officials did not announce the names of the successful bidders, citing unspecified security concerns. Tshenolo and Phuting, the two winners, were only announced in the government’s e-tender portal a month later following Buhle’s enquiries.
As such, Buhle could not have approached the court earlier for relief since it had no idea who the successful bidder was, said Adv Baloyi, responding to claims Buhle’s case did not meet the urgency threshold.
She said the interim relief would not negatively impact the department because it can request quotations from the service providers of its choice and get services rendered on a month-to-month basis until a tender is awarded fairly and legally.
Adv Baloyi requested a punitive and personal cost order against Arnold Malotana, the acting head of the Gauteng Department of Health, and other officials for refusing to share relevant information when asked.
“The pretence to award this tender was in bad faith. It was malicious, and they treated us with disdain. We have made a decision that they should pay the costs themselves. The state shouldn’t be required to pay for this,” said Adv Baloyi.
Adv Mokhari hit back, saying Buhle’s requested relief was based on the “inclination that the tender lapsed on 17 November 2022, which is not true”.
“The department does not dispute that some of the validity extension requests were received after November 17. But that should have been challenged at that time. This is a PAJA (Promotion of Administrative Justice Act) matter,” he added.
Judgement has been reserved.