The company fighting the Gauteng health department over a medical waste tender has pocketed over R500-million in payments for the same services since 2014, including six years of month-to-month contracts that amount to irregular expenditure.
Internal department records show that Buhle Waste has since 2017 been a chief beneficiary of the then-lapsed three-year tender at R5,4-million a month, adding up to R194-million in three years, or 36 months.
The month-to-month contract accounts for the remainder of the more than R500-million in revenue. The contract was extended to Buhle Waste and another company, Compass Waste.
“According to the payment report, Buhle Waste has been paid R514 081 789.43 since 2014 to date,” reads an internal memo of the department prepared as part of the second part (the merits hearing) of the urgent interdict heard last Friday.
In a lawyer’s letter on the same day of the court ruling, Buhle Waste threatens the department to halt all processes in the award of the tender pending the outcome of the health department’s appeal against the court order in their favour, claiming that they are defending the public purse.
Gauteng health pleads high court ruling
“Your clients’ intention to proceed with a tender worth more than half a billion Rands, despite a court finding that the tender award is invalid and set aside because there was no lawful extension, will have a huge impact on the public purse,” reads the letter from law firm Fairbridges Wertheim Becker.
The Joburg High Court declared invalid the recent award to Tshenolo Waste and Phuting Medical Waste Management, but the Gauteng health department swiftly appealed the ruling.
However, acting judge Ahmed Cajee suspended the order “for a period of six months to allow for the re-advertisement of the tender and the appointment of suitable service providers to render comprehensive healthcare management for the department of health institutions.”
The decision to suspend the orders prevented the department from having to return to the month-to-month arrangement and allowed Tshenolo Waste and Phuting Medical Waste Management to continue providing the services until the court-imposed deadline.
Buhle Waste had gone to court to contest, among others, the decision to extend the tender validity period on November 17 last year for 90 days until February this year. But records show that the company consented on the same day to the same extension it disputed in court.
The company similarly consented to four more follow-up extensions of the tender validity period ending on October 27. The department terminated the month-to-month arrangement on November 30.
It was only after losing the award, almost a year later in October this year, that the company found a loophole in that not all bidders had consented by November 17, the same date that the tender validity period was expiring. Some bidders only gave consent a day later, on November 18.
Tshenolo, Phuting tenders were invalid
Whereas the department issued a request for the extension of the tender validity period on November 17, to successfully extend the validity period, concurrency consent or approval was required from existing bidders before the expiration of the tender validity period.
The argument won the day, as Cajee agreed that November 18, even though it was just a day later, was beyond the set expiration date of November 17, and therefore the tender had lapsed.
Cajee ruled that the award of the tenders to Tshenolo Waste and Phuting Medical Waste Management, concluded on October 9 and 10, was invalid and set aside.
But Fairbridges Wertheim Becker said in their letter to the department: “Respectfully, the filing of the application for leave to appeal is cynical and can only have been done in the mistaken belief that by doing so, the Court Order would be suspended. We record that this is mistaken.”
The lawyers said the department could take any further steps to implement the tender and demanded an undertaking confirming the same, or they would take legal steps.
“Respectfully, your clients’ application for leave to appeal is a non-starter on merit. It further constitutes an abuse of the court process with the purpose or effect of undermining and frustrating the court order,” said the lawyers.
