KZNtenders: the dicey stick it to the dodgy

Two companies – each as politically connected as the other – have it out in court over awarding of contract.

Dube TradePort – a KZN-run parastatal long viewed as a cash cow of the politically connected, has just stuck it to a construction company long viewed as a recipient of dodgy tenders because of its connections.

On 21 May this year Judge Graham Lopes of the High Court in Durban ruled that the Dube TradePort Corporation was right in not awarding a 2016 tender for a bulk earthworks contract, valued at approximately R500 million, to Pinetown-based Aqua Transport and Plant Hire (Pty) Ltd but rather to Rokwil (Pty) Ltd from upmarket Kloof in Durban. Dube TradePort is situated at King Shaka International Airport.

Aqua was also rebuked by Judge Lopes because their “heads of argument are replete with nouns and adjectives designed to impugn the integrity” of both Rokwil and TradePort CEO Hamish Erskine.

TradePort CEO Hamish Erskine

Aqua brought the application to the high court in June 2017 after they lost the tender and a subsequent internal appeal. They were represented by Kemp J Kemp SC (Jacob Zuma’s favoured counsel) and Advocate Sarah Pudifin-Jones instructed by Naicker and Naidoo Attorneys.

“In my view it is both unfair and undesirable that review proceedings are brought to court on the basis of spurious allegations of impropriety, without the facts to back them,” said Lopes.

Lopes made Aqua pay everyone’s legal costs stating the multiple accusations they made in their Heads of Argument – effectively calling everyone else lying, swindling, cheating  crooks – was poor form without producing a shred of evidence.

 TradePort was represented by TG Madonsela SC and BS Khuzwayo instructed by SD Moloi and Associates.  Rokwil was represented by LB Broster SC and MZF Suleman instructed by Pedersen & Associates.

What Aqua had claimed was that Rokwil had colluded with a “consultant” to make sure they won the tender. They also claimed TradePort boss Erskine had not been objective when handling their appeal against Rokwil’s award, accusing him of being “judge and jury”.

But even though Kemp withdrew a number of claims of “impropriety” against Rokwil and Erskine he did state: “Something odd took place”. And he was right.

On 24 October 2016 Dube TradePort’s Bid Evaluation Committee recommended to the Bid Adjudication Committee to award the earthworks contract to Aqua.

To get the award the bidders went through three elimination phases. Phase One had focused on compliance; Phase Two saw them judged on functionality which included access to plant, earthworks experience and the experience of the site agent; and Phase 3 judged price along with their Black Economic Empowerment scorecard. At each phase bidders were eliminated. At the beginning of Phase Three five bidders remained, among them Aqua and Rokwil.

But on 25 October 2016 the adjudication committee “raised concerns” and sent the report back to the evaluation committee. They were concerned whether Aqua’s “construction programme was realistic, whether it had the relevant experience, and they questioned Aqua’s methodology”.  Their concerns all related to issues raised in Phase Two.

The evaluation committee then re-looked at all the bids and went through the process from Phase One to Three.

The committee eliminated Aqua in Phase Two by reducing that phase’s score from 71.1 to 58.1. In order to progress to Phase Three, Aqua needed to score above 70 points. No new documents were entered. They had simply looked at the same set of evidence and found sufficient cause to reduce Aqua’s score by 18%.

Rokwil was recommended by the evaluation committee and the adjudication committee accepted it on 28 October 2016. According to Aqua, they were further concerned that Rokwil was not the second-best scoring candidate, leapfrogging another group called Sisonke Joint Venture. 

Also among Aqua’s contentions was that no one else’s score changed. 

While Kemp withdrew a number of claims of “impropriety”, in the context of Dube TradePort’s history (noses197, 214), they are not far-fetched.

Former KZN Economic Development and tourism MEC Mik

Furthermore the Department of Economic Development and Tourism, a KZN provincial ministry which has oversight of TradePort is a hotbed for corruption and has been accused of meddling in TradePort’s tender process before. Its former MEC, Mike Mabuyakhulu (noses145,154,186 &197) is now facing serious allegations of looting R29m (nose221) from provincial coffers under the guise of hosting a jazz festival that never took place, while he was MEC. He is accused along with senior staff in that department and has appeared before the Durban Commercial Crimes Court.

However Aqua is no saint and hugely politically connected, so any accusation that Rokwil and TradePort had illegally influenced the decision of the evaluation committee could, hypothetically, have been flipped “replete with nouns and adjectives designed to impugn [their] integrity” had they won the contract.

Aqua is owned by Kevin Naicker, a hard-nosed businessman who has no scruples about taking matters into his own hands. According to the Institute for Poverty, Land and Agrarian Studies (PLAAS) shortly after buying a farm called Annidale outside Pietermaritzburg in 2015, Naicker illegally evicted 55 families living as labour tenants on the farm. He dumped them on another farm.

The politically connected Aqua was also awarded one of three contracts, totalling R45m to rehabilitate the road that passes Jacob Zuma’s Nkandla residence. Incidentally, Aqua had rented equipment to some of the initial “emerging” contractors who first built the road, doing the job so poorly that it crumbled underfoot. 

Over the years they have also won a host of controversial contracts throughout KwaZulu-Natal usually providing water tankers to cash-strapped, corruption riddled municipalities. Perhaps their most high-profile incident was when they were accused of corruption involving Pikitup – the Johannesburg waste collection service provider.

Prior to being awarded a R262m contract from Pikitup in June 2013, the waste company had commissioned a forensic investigation by Ernst & Young to look into companies with whom they were doing business, including Aqua. Among the report’s recommendations was that Aqua be charged with fraud.

The Pikitup boss Amanda Nair was suspended on this issue but later cleared in early 2015. However her reputation never fully recovered and a year later she was removed for other reasons. Noticeably Aqua has not been criminally charged. Despite requests, Pikitup would not give reasons why no criminal charges had been laid.

The owner of Rokwil is Durban-based entrepreneur property developer Rod Stainton, who hails from the small Zululand village of Gingindlovu, once known for its railway yards and lucrative sugarcane farming.

In 2012 Stainton was involved in a bitter commission dispute with South Africa’s most famous racist estate agent Vicki Momberg. In a weird twist of fate, that matter was also heard by Judge Lopes.

In the dispute Momberg accused Wenlin Trust, which Stainton said he controlled, of failing to meet its obligations of giving her sole mandate for a Kloof property development and diddling her out of R267,847.56 in commission payments.

Judge Lopes found in favour of the trust but said of Stainton he “was not impressed with… [Stainton] …who gave evidence for the trust”.

“[He] frequently did not answer the question, and resorted to rambling explanations in an attempt to neutralise the effect of questions put to him,” said Judge Lopes.

As for Momberg, who represented herself, the writing was on the wall.

“She refused to answer questions and constantly launched into speeches which had nothing to do with the question put to her… She constantly spoke over the top of persons asking questions and frequently interrupted when questions were being asked”. 

Aqua is considering appealing Judge Lopes’s latest decision.

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