High Court judge interdicts further construction of Fikile Gwadana Drive

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12-08-2022
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News24
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Enoch Mgijima Local Municipality (EMLM) has been negatively thrown into the spotlight again after the Makhanda High Court has ordered that no further work be undertaken in the controversial Fikile Gwadana Drive construction tender. 

This after the Independents councillors at EMLM, acting as the first applicant and the second applicant, EC Black Contractors Forum filed an urgent application in the high court. The municipality is the first respondent, municipal manager (MM) Nokuthula Zondani the second and administrator Monwabisi Somana the third. Makali Plant and Construction, the winning bidder, is the sixth respondent. 

Acting High Court judge Vuyokazi Nomcembu said the application was set in two part. In part A, the applicants are seeking to interdict the sixth respondent from executing any construction works on the site in the question. Part B seeks an order reviewing and setting aside the decision by EMLM to award the “impugned tender” to the sixth respondent. 

“At the centre of this application is the award of a tender for the construction of a 6.7km road, Fikile Gwadana Drive, between Komani and Ezibeleni…by the first respondent to the sixth respondent. It is not in dispute that the award of the impugned tender constitutes administrative action,” she said. 

In January Komani-Karoo Express reported that EMLM had appointed Makali Plant and Construction for construction work at the troublesome Fikile Gwadana Drive in Ezibeleni. The municipality at the time said it would cost them R98 million to construct the 6.9km stretch of road which had been handed over to them 10 months earlier at a cost of R3 million. 

In a follow up report, local businessman and Independents councillor Ken Clark had demanded the local authority to be transparent about the construction of Fikile Gwadana Drive, calling it overpriced.

The applicants are challenging the award of the tender on the basis that proper procurement processes were not followed, the municipality was placed under administration and as such, Zondani’s powers to commit the municipality were curtailed and that any action of financial nature needed the sanction of the administrator, Somana. 

The MM denied in court papers that the municipality had an administrator although conceding the municipality was under administration, the judgement read.

“I interpose here to observe that although the respondents’ version is that he appointment of (Somana) as the administrator of the first respondent expired after six months. This notwithstanding, no explanation is given by the respondents as to why annexure ‘EMM5’ is co-signed by (Somana) in his capacity as an administrator of the (municipality) in August 2022. 

“This seems to lend credence to the applicants’ version that the appointment was extended from time to time, further supported by annexure ‘RA1’ to the replying affidavit, which depicts an extension of the appointment… from 14 October 2021 to 13 April 2022,” Nomcembu said, adding that this was at odds with the version of the respondents that the municipality did not have an administrator. 

Makali was appointed on November 18, 2021 and a letter of acceptance by Makali the following day for the R98-million tender. However, the judge questioned why there were different prices and length of road to be constructed for the same project.

She said a feasibility study by Buchule Engineers was “not a model of clarity” on the estimated cost of the project. The report, which was prepared to solicit funding from the department of transport, totals the cost of the project at R99.89 million. This cost is approximately R10.09 million per km for a 9.9km stretch of road. However, the same report, comes with a 6.8km road which would cost the municipality R68.6 million to construct. 

“As can be seen from above, the project relates to the upgrading/ construction of the Fikile Gwadana Road…but it appears that there are two separate distances (lengths) of the road for which the total cost of the project was estimated. On the one hand the report refers to a total length of 9.9km at a cost of R99 971 489.89 million/ R99.89 million (I believe the latter may have been a typographical error in trying to round off the total amount,” Nomcembu said. 

“On the other hand, there is mention of a 6.8km road length and an amount of R68.6 million which is further broken down. There is, however, no explanation in the report as to why there are two separate road lengths and two separate amounts estimated for the project.” 

Nomcembu said Makali was interdicted from executing any further construction work on the site, the first to third respondent were interdicted from performing any functions and obligations a rising from any service level agreements and contracts concluded with Makali including payments.

“The first to third respondents are directed to furnish to the applicants, within five days of this order, with the information relating to the tender process for the construction of 6.7km road, Fikile Gwadana Drive between Komani and Ezibeleni, road situated in…as set out,” she said. 

The applicants were also directed to lodge the review application contemplated in part B of the notice of motion within 30 days of the order.

“Costs of the application are reserved pending the outcome of the review application contemplated in part B of the notice of motion.”