Judgment has been reserved in the R431m review application case into the Gauteng school decontamination contracts awarded last year to fight Covid-19.
The Special Investigating Unit (SIU) brought a substantive application to the special tribunal on Wednesday, seeking relief to review and set aside the 73 awarded tenders and recover the money from the alleged recipients.
According to the SIU, there were 280 service providers who were contracted but 173 were not in the central supplier database (CSD) and services were procured through WhatsApp and phone calls.
The 73 companies represented during the special tribunal argued that the emergency procurement had been necessary and also argued for non recovery of the money on that grounds.
Hilton Epstein SC, for the respondents known as Mpofana, said it was disputed that they were appointed through an unlawful and invalid procurement process. He said there had been a legitimate request from the Gauteng department of education (GDE) to deviate from the normal procurement processes for the appointment of service providers.
He said it was disputed that the process did not comply with requirements of section 217 of the constitution.
Epstein said the SIU had adopted a “shotgun” approach to the application by lumping the Mpofana respondents with all the other respondents without taking into account individual circumstances.
“It is disputed that the procurement process for the decontamination and sanitisation of schools was unlawful. The Mpofana respondents were on the CSD. The SIU ignored the serious nature of the pandemic at the time, the panic which ensued and the need to protect lives. It is disputed that the service providers were selected at the whim of various department officials,” Epstein said.
“The applicant has failed to establish the irrationality necessary for a legality review or any other grounds for a review and setting aside of the appointments of the Mpofana respondents. The application should be dismissed with costs including the costs consequent upon the employment of two counsel,” Epstein said.
The SIU’s Matthew Chaskalson SC said the procurement process conducted by the GDE had been flawed and patently unlawful.
“The department paid over R431m to service providers pursuant to a process that was haphazard, unfair and opaque. Given that the service providers were not registered for the provision of cleaning and decontamination services, they had not been vetted by the department’s SCM [supply chain management] division in respect of that industry. The service providers were not paid per square metre of the area cleaned. The evidence shows that the service providers in this case were grossly overpaid for the services provided,” Chaskalson said.
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