A top medical waste company has taken the Gauteng Department of Health to court over a procurement process it believes was flawed and unlawful.
Buhle Medical Waste has applied for an urgent interdict against the department, saying its decision to award a R526 million contract to Tshenolo Waste (Pty) Ltd and Phuting Medical Waste Management (PTY) Ltd a few weeks ago should be declared invalid and set aside.
Buhle approached the Johannesburg High Court seeking an interim interdict to stop the implementation of the 36-month waste management tender, which it regarded as full of legal pitfalls.
The company, the current service provider, said in its court papers that the department extended its validity date from September 28 to October 27 without consent from the rest of the bidders and extended a lapsed tender. Buhle also seeks declaratory relief to the effect that the tender had lapsed or must be cancelled.
In her founding affidavit constituting Part A of the application, Buhle director Evelyn Masedi has asked the High Court in Gauteng for an order interdicting the awarding of the tender to Tshenolo Waste and Phuting Waste. Tshenolo Waste won a disputed R314 million contract to collect and dispose of medical waste in Tshwane and Johannesburg. Phuting Waste scored another disputed R211 million tender to do the same in Ekurhuleni, Sedibeng and the West Rand.
Buhle has asked the court for an order preventing the department from taking any steps regarding the tender pending the outcome of the judicial review, which forms Part B of the application. The interim interdict is further intended to stop Department of Health MEC Nomantu Nkomo-Ralehoko, acting head of department Arnold Malotana, Department of Finance MEC Jacob Mamabolo, and the bid adjudication and evaluation committees from “taking further steps in implementing the tender.”
Suggesting that the department constantly mistreated it, Buhle Waste said it was previously forced to provide services despite the department failing to meet its financial obligations on several occasions. As a result, last year, it had to suspend its services for a week in protest over a R27 million bill dating back two years.
Masedi said in her affidavit that Buhle had been forced to litigate with one hand behind its back because the department had chosen to confuse and conduct itself secretly at every turn.
She said only the court could protect Buhle’s rights and ensure that the Department of Health and other state respondents’ errant conduct is remedied in Part B of the proceedings.
Masedi said the department consulted the bidders a day before the validity extension date. Only Buhle consented to the extension on time, while the rest of the bidders failed to do so.
“First, once the department committed itself to a legal process of extension, it was bound by it. So, even though the department now belatedly and contradictorily contends that the extension was not necessary, the reality is that once it committed itself to a course of action, unless it seeks to review it and set it aside, it needs to comply therewith. This is a trite proposition of law. Without more, the tender has lapsed.
“Second, the department has behaved supinely in respect of its own extension that it now contends was not necessary. Apart from the fact that regardless of what the department says is now the true and correct state of affairs regarding the extension, the department is not allowed to ignore it.
“Third, the department advances a contradictory version regarding whether the extension was in fact needed and who was regarded to consent. The department’s best version regarding its conduct destroys its own case,” Buhle’s lawyers stated in their updated heads of argument.
The provincial health department, Tshenolo Waste and Phuting Waste have all denied that the tender had lapsed.
In an affidavit, Tshenolo Waste director Tshepiso Ramonyadiwa said the litigation against the department had nothing to do with the contract the company won.
“I deny that the tender has lapsed as suggested by the applicant in its founding affidavit. Considering the contents of the applicant’s founding affidavit, the applicant does not seek to challenge the request that the department made to the bidders to extend the validity period of their own bids. The letter that the department sent to bidders requested them to extend the validity period of their own bids and not of the tender process,” said Ramonyadiwa.
However, in its earlier papers submitted to Johannesburg High Court Deputy Judge President Roland Sutherland, the department admitted that the extension request on September 27, 2023, was unnecessary as the bid had already been awarded.
The department claims that it had already awarded the tender on September 15, 2023, when it erroneously sent out a proposal for an extension of the validity period before the extended validity period could close on September 27, 2023.
Gauteng Department of Health acting head, Malotana, stated in his replying affidavit that it is legally impossible to interdict the department from implementing a tender it has already issued. Responding on behalf of himself, Nkomo-Ralehoko and the department, Malotana opposed Buhle’s legal challenge.
“This relief is an interim interdict. I am advised that interdicts concern themselves with the future and not events that have already occurred. Curiously, the applicant seeks this final order without the record and does not seek the record in Part A. This order is sought on speculative grounds and innuendo without verified facts in the applicant’s own version. This is entirely untenable.
“On the applicant’s own version, on September 15, 2023, it was aware that there were two successful bidders, and on September 11, 2023, a publication was issued by the department where the names of both successful and unsuccessful bidders appeared. It is surprising as to why the applicant would bring an application and pretend as if the tender has not yet been awarded and prefer to bring this application on speculation grounds,” said Malotana.
Malotana said that on October 19, 2023, the department’s attorneys informed Buhle about the awarded tender.
“The applicant ought to have withdrawn the application immediately after it was informed by the department’s attorneys and the tenth respondent’s attorneys that the tender had already been awarded. Instead, the applicant obstinately forged ahead with the application on October 24, 2o23, when it agreed to remove the matter from the roll,” he said.
In her consolidated replying affidavit, however, Masedi said the department had hung itself with its own rope. She said the issue of the latest request for an extension of the validity of the tender arose from Buhle’s legal correspondences, warning the department that the announcement of the two successful bidders on September 15, 2023, was unlawful.
“The department requires extension letters from all bidders in order to validly extend the tender beyond September 26, 2023. So, even though the department now belatedly and contradictorily contends that the extension was not necessary, the reality is that once it committed itself to a course of action, unless it seeks to review it and set it aside, it needs to comply therewith.
“Apart from the fact that regardless of what the department says is now the true and correct state of affairs regarding the extension, the department is not allowed to ignore it. That would amount to self-help. What is common cause is that the depths not sought to set aside what it now purports to be an unlawful step. Assuming that the tender was indeed awarded on September 15, 2023 which is denied, then an extension was not necessary,” stated Masedi.
The case will be heard on Tuesday, November 21.