The Gauteng Department of Health says it has narrowly escaped a catastrophic financial and service delivery crisis.
This follows a Supreme Court of Appeal (SCA) ruling that finally gave its disputed R526-million medical waste contract award to Tshenolo Waste and Phuting Waste a legal thumbs up.
Recently, the Bloemfontein-based court ruled that the department had legally appointed Tshenolo and Phuting to replace Buhle Waste as the service provider. In 2023, a Johannesburg High Court judgment had set aside the award to Tshenolo and Phuting, ruling that incumbent provider Buhle continue providing the service.
When Buhle Waste’s contract expired, the department awarded the new tender to Tshenolo Waste and Phuting Waste, triggering a legal dispute. Although Buhle had initially agreed in writing to extend the validity of its bid beyond the original expiry date of November 17, 2022, it later went to court to stop the new companies from starting work and argued that the tender process was invalid.
Speaking exclusively to Sunday World, departmental spokesperson Motalatale Modiba said the high court had caused widespread confusion and jeopardised public health services by halting a valid tender on flawed legal grounds.
Tender GT/GDH/060/2022 gave Tshenolo and Phuting a three-year contract to safely dispose of hazardous medical waste from public hospitals and clinics. Buhle challenged this, claiming the department had exceeded the time allowed between accepting bids and the decision. It argued that all bidders, including Tshenolo and Phuting, should have been required to submit fresh bids.
The argument won favour with the high court, but when the department appealed, the Supreme Court of Appeal was not convinced. In an unanimous ruling authored by Justice Elizabeth Baartman, it found that the high court’s approach was procedurally flawed.
The court described Buhle’s strategy as opportunistic.
“It compromised the public interest in the finality of administrative action and trampled on the rights of the other parties affected by the tender award.”
According to Modiba, the department’s successful appeal not only saved taxpayers significant money but also preserved uninterrupted service.
Buhle Waste director Evelyn Masedi said the company is disappointed by the Supreme Court of Appeal ruling, arguing that the court “chose form over substance”. She claims the tender process was unlawful and blames the Gauteng Department of Health for withholding crucial documents.
“The SCA ruled against us for not going through the administrative process via Paja (Promotion of Administrative Justice Act) even though the very same process… was deliberately used by the department to frustrate us,” she said.
