A controversial multimillion-rand security tender that was allegedly awarded by the Vaal University of Technology (VUT) to a less preferred bidder has been successfully interdicted in court.
This was after Kya Guards on December 2 brought an urgent court challenge to the awarding of the tender to PhiriPhiri Security Services.
The matter was heard at the Johannesburg High Court on December 18.
In her order, Judge Thina Siwendu interdicted the VUT from implementing the award and ordered the university not to proceed with the service agreement it had entered into with PhiriPhiri for the provision of services, pending the determination of part B of the relief sought by Kya.
Part B refers to Kya instituting an application to review and set aside the VUT’s decision to award the tender.
VUT spokesperson Mike Khuboni confirmed the order. He said the university had applied to Siwendu to provide written reasons for the order on January 5.
“The VUT is currently awaiting the judge’s reasons and will consider its position once those are received. The review is sub judice and the VUT will, in due course, file its papers to oppose the review of the tender. The VUT denies any wrongdoing in the award of the tender to PhiriPhiri. In conclusion, the VUT is honouring the court order,” Khuboni said, without commenting on the allegations that experts were allegedly involved in the awarding of the tender.
Dirk Kotze, PhiriPhiri’s legal representative, said the matter was lis pendens – meaning a legal action is pending – and declined to answer questions.
However, Kotze said: “Our client denies that the award of the tender was irregular, as suggested by you.”
Advocate Masonwabe Mhambi, who represented Kya, said the VUT had refused to furnish them with critical information in respect of this matter, but an application to compel the university would be launched next week.
However, Mhambi added that the issue would be relevant on review application.
ABOUT THE TENDER
According to the chronology of events detailed in the founding affidavit by Kya CEO Lance Maphosa, the VUT advertised the five-year security tender on July 7.
Maphosa said that Kya Guards had submitted the bid three days before the closing date of July 16.
“On or about November 30 2020, Kya Guards received reliable information from an internal source, who had no connection whatsoever with Kya Guards: a whistle-blower who was interested in making sure that the processes were followed and that the VUT complied with its internal processes,” Maphosa’s affidavit reads.
Maphosa said the anonymous whistle-blower informed his company that PhiriPhiri had been appointed unlawfully in breach of the VUT’s supply chain policy, as per the bid evaluation and adjudication committees, and Kya was “a preferred bidder, who met all the requirements”.
Subsequent to this, Maphosa said a letter was addressed to the VUT on November 30 demanding all necessary documents for the tender.
On December 1, a letter was received from the VUT’s attorneys stating that they could not provide Kya with any information about whether the contract had been signed or how far along the process was.
“At this stage, we have not been provided with any rejection letter. However, on the strength of the information we have received from the whistle-blower, substantiated with the non-cooperation of the first respondent [the VUT], we are of the view that should we wait any longer, Kya Guards’ rights will be unfairly violated,” the affidavit reads.
In the opposing affidavit dated December 8, VUT legal practitioner Daniel François Fouché said the application should be struck off the roll with costs – a plea that was not entertained by the court.
Fouché said the VUT and PhiriPhiri had concluded a service level agreement on December 2, which had already been implemented with effect from December 1.
City Press has also seen a copy of the agreement signed by Professor Ihron Rensburg, the administrator of VUT, and PhiriPhiri general manager Dakalo Makwarela.
Fouché said claims made by Maphosa that the tender was unlawful and irregular were unsubstantiated by any facts, and was illogical.
“They are, at best, bald allegations and denied,” Fouché’s affidavit reads.
Fouché said he objected to the use of hearsay evidence from an anonymous person and that it was strange that an “unknown person” gave “reliable information” relating to the alleged unlawfulness of PhiriPhiri’s appointment.
Fouché said the VUT was unable to comment on these vague allegations, aside from stating that the supply chain policy and its internal evaluation and adjudication processes had been followed properly.
Fouché said PhiriPhiri had been rendering security services to the VUT for many years in terms of a previous tender, and had simply continued rendering such services since the new tender was awarded to it.
“It was a seamless transition and would be extremely inconvenient and disruptive if the applicant [Kya] is now allowed to take over the service,” Fouché’s affidavit reads.