A leading medical waste company, which successfully challenged an unlawful Gauteng Department of Health tender valued at over R500 million, has urgently approached the Johannesburg High Court, seeking an interdict to prevent a recent court order from being suspended while awaiting an appeal.

Last year, Buhle Waste (PTY) Ltd filed for an urgent interdict against the department, arguing that the decision to award an R526 million contract to Tshenolo Waste (Pty) Ltd and Phuting Medical Waste Management (PTY) Ltd should be deemed invalid and overturned.

The South Gauteng High Court in Johannesburg declared the medical waste tender invalid and subsequently set it aside on November 30, 2023.

Judge Ahmed Cajee stated that the tender awarded by the provincial department of health has expired. Following Judge Cajee’s declaration of the tender as invalid, the department quickly submitted legal documents to the court, expressing their intention to appeal the ruling.

According to Buhle’s legal team, the application was made to prevent any unauthorized beneficiaries from profiting from the contract while the case is still ongoing.

An urgent letter of demand was sent by Dhahini Naidu, the director of Fairbridges Wertheim Becker Attorneys, to the attorneys representing the department.

According to her, the application for leave to appeal seemed to be made with a cynical intention, possibly due to a mistaken belief that it would lead to suspending the court order.

The lawyers also submitted an application to the court, requesting that the Gauteng Department of Health be prohibited from using their appeal to proceed with the illegal tender.

The court was requested to declare that the order from November 30, 2023, should not be suspended pending the appeal.

The provincial health department’s lawyers must file their answering affidavits by January 17, 2024.
In her founding affidavit, Evelyn Masedi, the director of Buhle, implored the High Court to examine ulterior motives carefully.

“At the outset, we submit that the urgent relief sought herein must be contextualized outside of the context of the suspension of period set out in Order 3 in Cajee AJ’s order. The genesis of this application is to curtail the State respondents from implementing the unlawful and invalid tender pursuant to the suspension of operation of Cajee AJ’s order, pending the determination of their application for leave to appeal.

“They have launched their application for leave to appeal with ulterior motives and in bad faith, in order to suspend the operation of Cajee AJ’s order and continue to implement the unlawful and invalid tender, as if no such order was made on November 30, 2023, and in negation of the Honorable Cajee AJ’s reasons for his order. The latter intentions of the State respondents have the purpose or effect of undermining the order of Cajee AJ,” Masedi wrote.

Masedi added that unlawful conduct should not be promoted under the guise of an appeal.

“The State respondents will be entitled to act in ignorance of Cajee AJ’s order, despite its objective findings regarding the state’s unlawful conduct. To allow the State to clothe its unlawfulness with competence only because of a misguided and meritless application for leave to appeal is a perversion of justice, constitutes an abuse of process, and ought not to be contemplated.

“It is not the purpose of this application to prevent the respondents from having recourse during the six month suspension period as per Order 3 of the Cajee AJ’s order, based this application is ultimately aimed at upholding the integrity of Cajee AJ’s order at the expiration of the six-month suspension period and to curtail further irreparable harm from ensuing onto the applicant and the public at large, pending the determination of the respondents’ application for leave to appeal,” Masedi wrote.

When asked for a comment, Motaletale Modiba, the spokesperson for the Gauteng Department of Health, stated that the department has issued its response and currently has no additional comments to provide.

The case was due to be heard by Judge Cajee on Friday, February 26.