Tuesday, September 28, 2021

Appeals court drives roads company to a dead end

The Court of Appeal has ruled against road construction company Cul de Sac (Pty) Ltd in the controversial P450 million Tshesebe-Mosojane-Masunga roads that have been on hold since 2016.

Delivering judgment, a panel of three Court of Appeal judges Ian Kirby, Stephen Gaongalelwe led by Isaac Lesetedi ruled against Cul de Sac and ordered Independent Review Committee (IRC) to consider Landmark Projects for the tender.

The tender dispute involves LandMark Projects, Van and Truck Hire (Pty) Ltd, Public Procurement and Assert Disposable Board (PPADB), Attorney General against Cul de Sac.

In his Judgment Lesetedi said the High Court was wrong in accepting some complains from Cul de Sac without substantive evidence especially about the relationship between LandMark and Herbco (Pty) Ltd and that  the chairperson of the IRC breached the rules of natural justice by sitting on an appeal in which he had a conflict of interest, he being a shareholder and director of a company (Herbco) which had been engaged by Landmark to carry out an Environmental Management Plan (EMP) evaluation in Landmark’s ongoing project.

The judge said, in any event LandMark, a private entity had no control over the files of government Ministry and its contractual relationship with third parties.

He ordered that the appeal is upheld save to the extent that the Order issued by the IRC directing the Board to award to the Landmark/T & VH JV, is set aside.

He further said the matter is remitted back to the IRC for the issuance of an appropriate order under IC Regulation 14(1)(b)(i) of the Act for the PE to recommend the award of the Tender to Landmark/T & VH JV.

Judge Lesetedi further ordered Cul de Sac to bear the costs a quo and of the appeal.

In the judgment judgment, the three Court of Appeal judges said the Appellants have substantially succeeded in their appeal except as to the appropriateness of the order issued by the IRC in the Landmark JV complaint. The decision of the court a quo has been set aside and the grave allegations of irrationality levelled by Cul de Sac have been found to be without merit.

“To recap, Cul De Sac was clearly without a case in that firstly, the case it relied upon on the ESP factor was without legal basis. Secondly, on its own acknowledgement the Landmark / T & VH JV were the lowest priced bid who, on the evaluation committee’s report, met all the technical requirements of the procuring and disposing entity and who also had the experience in projects of a similar nature and magnitude” said the three judges

The judges said: It is therefore also evident that in terms of capacity to carry out the project and on experience in similar projects the Landmark JV had much to go for it compared to Cul de Sac.

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