The Constitutional Court has delivered a blow to contractors involved in the controversial R40-million Beitbridge border fence project.
The apex court dismissed their application for leave to appeal, effectively closing the door on further legal challenges.
The judgement confirmed earlier findings that the contracts awarded during the COVID-19 State of Disaster were unlawful due to procurement irregularities.
Selby Makgotho, Special Investigating Unit (SIU) spokesperson, explained that the matter stems from contracts awarded by the Department of Public Works and Infrastructure to Proftem CC and Caledon River Properties, trading as Magwa Construction, for the construction of a 40-kilometre razor-wire fence along the South Africa–Zimbabwe border.
No competitive bidding process
The SIU had found that the contracts were issued without a competitive bidding process, in breach of constitutional and treasury requirements.
In its ruling, the apex court found that the contractors’ applications did not fall within its jurisdiction and dismissed them with costs. The decision reinforces earlier outcomes by the Special Tribunal, High Court and Supreme Court of Appeal, all of which upheld the SIU’s findings.
‘Door to further appeals closed’
“Together, these outcomes close the door to further appeals and cement the findings of the Special Tribunal, High Court, and SCA: The R40-million Beitbridge border fence contracts were constitutionally invalid due to procurement irregularities, contractors are not entitled to retain profits from unlawful conduct, but only to reimbursement of reasonable and proven expenses, which are subject to audited accounts.
“The contracts were awarded without a competitive bidding process, in violation of section 217 of the Constitution and Treasury Regulations. The contractors received large advance payments of approximately R21.8-million before any substantial work was performed. Soon after completion, the fence began to fall apart,” said Makgotho.
Makgotho said the courts have consistently ruled that while contractors may recover reasonable and proven expenses, they are not entitled to retain any profits derived from irregular procurement.
He said the outcome affirms its mandate to recover public funds and prevent corruption and added that any evidence of criminal conduct uncovered during its investigation will be referred to the National Prosecuting Authority for possible prosecution.
- The Constitutional Court dismissed contractors' application to appeal the R40-million Beitbridge border fence project ruling, ending further legal challenges.
- Contracts awarded during the COVID-19 State of Disaster to Proftem CC and Magwa Construction were declared unlawful due to procurement irregularities and lack of competitive bidding.
- Previous rulings by the Special Tribunal, High Court, and Supreme Court of Appeal were upheld, confirming the contracts violated constitutional and treasury regulations.
- Contractors are entitled only to reimbursement of reasonable and proven expenses, not profits, following violations including large advance payments and poor construction quality.
- The Special Investigating Unit will continue efforts to recover public funds and refer any criminal findings to the National Prosecuting Authority for prosecution.
Selby
In its ruling, the apex court found that the contractors’ applications did not fall within its jurisdiction and dismissed them with costs.
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He said the outcome affirms its mandate to recover public funds and prevent corruption and added that any evidence of criminal conduct uncovered during its investigation will be referred to the National
