Judge Michael Leburu has dismissed an application by the Public Procurement and Asset Disposal Boars (PPADB) for a stay of execution relating to a road project tender worth P450 million.In his judgment Leburu turned down PPADB, Attorney General, Landmark Projects Pty Ltd and Van Tracks Pty Ltd application for a stay of execution in awarding a 51-kilometre Tshesebe-Masunga road project tender to Cul de sac Pty (Ltd).
He ordered that the tender be awarded to the company to avoid price escalation as the tender was floated in 2016.Judge Leburu said the applicants have no reasonable prospect of succeeding at the Court of Appeal. This is borne out by Landmark Projects (Pty) Ltd’s unsatisfactory performance in past and present projects, which was an essential requirement in the Invitation to Tender (ITT).
“The applicants, particularly Landmark (Pty) Ltd and Van and Truck Hire (Pty) Ltd have alluded to the possibility of suffering irreparable harm and prejudice, if stay is not granted. I am unable to fathom any irreparable harm to be suffered, except self-serving financial motive, for the tender to be awarded to them.’’ Leburu said.
He said the project in question, being a developmental project has lagged behind since 2016. Any further delays will result in price escalation. There is also material on site, which is under threat from unlawfully asportation. Leburu said the PPADB exhibited gross incompetence by its lopsided interpretation of the ITT, wherein it concluded that this was an ESP project, whereas it was. Such misguided interpretation led to a flurry of appeals herein to the ICRC, which appeals caused further delays to the project. A substitutory order was therefore apposite, in the circumstances.
“For this court to grant a stay of execution, pending appeal, it would be tantamount to condoning an illegality, which the court has determined, and made, with respect to the falsification of the ICRC Board Minutes. Interestingly, the ICRC has accepted and acquiesced in the damning finding, by not appealing,” said Leburu
He said having regard to all the competing interests in this matter, the applicants have thus failed to stimulate and enthuse my discretion in favour of granting a stay of execution. Time is of the essence for this project to commence, without any further delays.The judge said it is regrettable that the application for stay of execution is dismissed with costs. The costs will be borne by the applicants jointly and severally.
