The Durban trading company that, in June this year, won a R100-million lawsuit against the eThekwini municipality has returned to court to force the ANC-EFF-IFP-NFP-run municipality to pay it out.
Bless Joe Trading CC’s case will be heard today at the Durban High Court, and the municipality has indicated that it intends to file opposing papers, but it has not yet done so.
The company waged a four-year legal battle against the municipality after its tender to house 2019 flood victims in the south of Durban was unlawfully cancelled, but its equipment was used for years.
The company provided the marquees, flooring, and public toilets for 150 displaced people after the municipality advertised the tender on an emergency basis.
Initially, the tender agreement stipulated a 14-day duration at a cost of R208 000 per day, an increase from the initial agreement of R190 000 per day.
However, eThekwini extended the tender while arranging alternative accommodation.
Plea to cut service fee rejected
During this period, eThekwini officials attempted to persuade the company to reduce the daily service fee by 40%, but the company declined.
It appears from the court papers that municipal officials became spiteful and decided to cancel the tender.
As a result, on March 31, 2020, Bless Joe Trading received an email from eThekwini terminating the contract and indicating that alternative shelter would be arranged for displaced people.
However, despite eThekwini indicating that the people would be placed in an alternative shelter, the marquee and ablution facilities were not removed from the premises, and the municipality did not provide alternative accommodation for displaced people.
So, Bless Joe Trading kept sending invoices for services to eThekwini for the facilities used by the occupants after the contract ended, but the invoices were ignored and no payments were made.
On the date of the institution of the lawsuit, Bless Joe claimed a payment of R73-million plus value-added tax at 15% and interest.
The court ruled in its favour by including legal fees, bringing the final figure to almost R100-million.
During the court hearing before the June ruling was handed down, the eThekwini municipality frantically tried to defend the case, claiming the company was not prevented from removing its equipment.
Covid-19 lockdown
However, city officials asserted that even if they didn’t stop the company, the Covid-19 lockdown would leave the displaced people with no alternative place to stay.
“However, in light of the evidence by the defendant’s own witness that even if the plaintiff was not prevented by the occupants from removing the tent, the defendant would not have moved the people because there was no alternative accommodation, the issue of whether the people remained in the tent because they prevented the plaintiff from taking possession thereof has become academic,” the judge ruled.
Spiteful eThekwini officials also attempted to claim that Bless Joe Trading charged it for electricity; however, the electricity was actually being drawn from the nearby Tehius hostel, which receives it for free from the municipality. The court dismissed that counterclaim.
“The defendant was in a good position to investigate these issues and place evidence before the court regarding irregularities committed during the procurement process, if any.
“In light of the defendant’s own witnesses confirming that the tender process was correctly followed and no irregularities were committed, and in the absence of any evidence to the contrary, this court has no basis to conclude that the award of the tender to the plaintiff during the state of disaster was illegal. For that reason, the counterclaim must fail,” the court ruled in June.
