Eastern Cape Health tender dispute: Court orders release of documents

The Department of Health in the Eastern Cape has been ordered to release a trove of sensitive tender bidding documents amid concerns that its award of a multi-million rand tender was “riddled with discrepancies”.

A Durban-based company, Makhathini Waste Pty Ltd, lodged a legal challenge after suspecting irregularities. It demanded the release of documents used to award the tender and a record of payments made to the winning bidder after the tender had been awarded.

Makhathini Waste had been one of the bidders for the multi-million rand medical waste tender but had lost. The company said yesterday the matter had been heard in the Eastern Cape High Court, and the court ruled in its favour, instructing the department to release the documents within 30 days.

Bonginkosi Makhathini, owner of Makhathini Waste, said in a statement to The Mercury yesterday that the court ruled in their favour, directing that the department must comply with the Promotion of Access to Information Act (PAIA) request that the company had submitted within 30 days.

Detailing what led to this legal action, he said it aimed at ensuring the bidding process was fair. He said in 2024, the Eastern Cape Department of Health advertised a 36-month tender for the provision of medical waste services. Makhathini Waste responded by submitting a compliant and competitive proposal alongside several other industry players.

Makhathini said the tender was initially awarded at a value of R121.8 million, reportedly on the basis that the winning company was the lowest bidder. However, he alleged that they had information indicating that the same contract was awarded at a substantially escalated value of R365.4 million.

“This material discrepancy raises serious questions regarding the integrity, transparency, and fairness of the procurement process. It is particularly troubling that other qualifying bidders were eliminated despite submitting competitive and compliant proposals,” he said in the statement.

“This action is undertaken in the interests of justice, transparency, and the promotion of fair and ethical industry practices,” said Makhathini.

In its application, Makhathini Waste asked the court to compel the department to hand over the records. The access-to-information application sought to find out:

• The names of the companies that had submitted bids
• All the bid evaluation and adjudication documents leading to the award of the tender
• The minutes of the Bid Evaluation Committee and other committees involved in the process
• The name of the successful bidder and the price at which the tender was awarded
• The contracts entered into with the successful bidders
• Any records reflecting escalation, amendment, and variations to the contract prices from the date of the award to date, including the reasons for such amendments, along with approvals and supporting documents
• Any other documents that would enable the requester to assess whether the tender process was fair, transparent, equitable, and competitive

The court papers revealed that the PAIA application was made in September last year. While the Department of Health acknowledged receipt, it failed to respond within the prescribed period. An internal appeal, provided for in PAIA, was lodged on November 20, and the department was supposed to consider the application and respond within 30 days.

That period lapsed in December last year without a decision being made on the application.

“The failure by the first respondent to make a determination on the internal appeal constitutes a deemed refusal, alternatively an unlawful failure to take a decision, which materially prejudices the applicant,” it said.

The company stated in the court papers that it needed the information to assess whether the tender process had been lawful, to consider further legal remedies, and to protect constitutional rights to access information.

Department of Health spokesperson Camagwini Mavovana challenged Makhathini’s claims and indicated that the Notice of Motion by Makhathini is very unfortunate pertaining to the bid.

“This is a rate-based contract to the maximum value of R121 million. A rate-based contract expenditure is controlled by consumption, and payment is made against the bid amount. The department is not aware of any adjustment of this value as claimed by the bidder. Whilst we appreciate the issues raised by the bidder, misinformation and allegations contained in the notice are not true and are viewed as an attack on our SCM processes.”

Mavovana said the department is willing to cooperate with anyone with legitimate claims against it and release any legitimate documents in its possession, subject to PAIA and POPIA compliance.

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