Mohalenyane Phakela
AN association of local construction and mining companies has petitioned the High Court to join the government’s Procurement Tribunal as one of the defendants in its application to overturn the M33 million tender for the upgrading of Moshoeshoe I International Airport.
The controversial tender was awarded to South Africa’s LTE Consulting, a company owned by controversial South African businessman, Thulani Majola. The latter is said to enjoy cordial relations with politicians in both Lesotho and South Africa.
LTE Consulting was awarded the tender in 2021. This despite that it had been liquidated in South Africa, thus making it ineligible to bid for the tender.
Civil Mining and Building Constructors (CMBC), which represents local contractors and one of the losing bidders, PM Aviation Consultancy, subsequently joined forces in August this year and petitioned the High Court to overturn the tender award.
With the matter pending, CMBC now wants the court to add the Finance ministry’s Procurement Tribunal as one of the defendants. This, according to CMBC, will enable the tribunal to explain why it upheld the June 2021 decision of the Transport ministry to award the tender to LTE Consulting.
The Transport minister, LTE Consulting and Attorney General Rapelang Motsieloa are the first to third respondents in the latest application filed this week.
In his founding affidavit, one of the CMBC members, Mohalenyane Masasa, contends that the Procurement Tribunal failed to verify whether LTE was illegible for the contract.
“The Tribunal must depose an affidavit and inform this court why it entertained the appeal of Maile Masoebe, who was principal secretary and chairperson of the Bid Evaluation Committee, and decided to issue a judgment in favour of a liquidated company contrary to prudential considerations,” Mr Masasa argues.
“When Mr Masoebe appeared before the Tribunal to say LTE had won a case (against liquidation) in the Johannesburg High Court, a competent Tribunal ought to have verified that position. It downplayed the issue and decided not to reflect it in its judgment. This is an indication of judicial dishonesty that must be addressed.”
Mr Masasa goes on to sensationally accuse the Tribunal and the Transport ministry of corruption and colluding with Mr Majola to fleece the public purse.
“The appeal of the Ministry of Transport ought to have been dismissed. The judgment makes no reference to the status of second respondent (LTE). The silence and omission are not casual but deliberate and contrived.
“With the greatest respect to the Tribunal, I suspect it had been repurposed as a vehicle for looting and facilitating an underhanded deal. There appears to be major discrepancies between its judgment and the ruling of PPAD.
“In view of the public interest of this case, we felt that the whole arrangement of awarding the tender of this magnitude to a liquidated company must have involved incentives among public officials in the Ministry of Transport. There was accordingly a need for the record of their decisions to be dispatched.
“In the first place, the Ministry of Transport was not willing to dispatch the record of the decisions and or proceedings. In the meantime, it continued to pay a liquidated company.
“The payments made to Thulani Majola smacks of collusion between the said Majola, members of the Tribunal and personnel at the accounts section of the Ministry of Transport. The fact that they paid a liquidated company is a matter that must be answered. There is a symbiotic relationship between people who dug in their heels and refused that Thulani Majola was owing Continental Engineering Consulting as at 2 September 2021. The Tribunal was well aware of this fact when it delivered its judgment on the 22 October 2021,” Mr Masasa states.
He further alleges that LTE did not have any experience in aviation matters and that it submitted falsified financial statements when it was awarded the tender.
“I point out the fact that the financial statements that Thulani Majola provided to whoever invited him for purposes of selective tendering were false and a misrepresentation of second respondent (LTE)’s financial position at the time the bidding process was undertaken. I challenge the second respondent to provide the financial proposal it submitted.
“There was no way the financial proposal of a liquidated company could have been acceptable, hence the prior ruling of the PPAD (Finance ministry’s Public Procurement and Advisory Division) recognised that everything about the award of this tender was a sham.
“My viewpoint is that the second respondent has no experience in civil aviation. It did not even understand the Request for Proposal. The assignment was consultancy work for the supervision of the implementation of Moshoeshoe I International Airport improvements but its proposal talks of the construction value or building the airport and contract management. It postured as an expert for building airports,” Mr Masasa further argues.
The Tribunal had been seized with the tender issue after one of the losing bidders, WSSL Joint Venture, petitioned it to reverse the award of the tender to LTE.
WSSL wanted the award cancelled because LTE was allegedly not among the companies originally invited to tender for the project.
However, the Tribunal dismissed the application in October 2021 on the basis that former cabinet minister, Mophato Monyake, a qualified engineer who had submitted the petition on behalf of WSSL, allegedly did not have the authority to represent WSSL. Mr Mophato Monyake served as Justice and Correctional Services minister in former Prime Minister Thomas Thabane’s first government which lasted from 2012 to 2015.
Before the matter went to the Tribunal, it had first been handled by another division in the Finance ministry, the Public Procurement and Advisory Division (PPAD).
The PPAD had on 10 September 2021 reviewed and set aside the award to LTE citing the failure by the Ministry of Transport to follow proper procurement regulations. It ordered that the tender be redone via an open, competitive tender process.
The Transport ministry then appealed to the Tribunal which ruled in its favour. The Tribunal agreed with the ministry that Mr Monyake did not have legal authority to represent the WSSL Joint Venture. It granted the ministry’s appeal on that technicality without even considering the merits of the case as the PPAD had done.
The Transport ministry had then proceeded with its work on the airport with LTE as per the award. This was until AmaBhungane, a South African investigative media outlet, made the stunning exposure that at the time it was awarded the Lesotho project in June 2021, LTE was in fact facing liquidation. The liquidation application had been filed in the Gauteng Division of the South African High Court in March 2021 after LTE failed to pay a debt of M8, 9 million to another South African company, Kontinental Engineering. LTE had subcontracted Kontinental in a project to build a bus station in the City of Ekurhuleni in 2020 but failed to pay the balance owed. A provisional liquidation order against LTE granted in July 2021 was made final on 24 February 2022.
This prompted CMBC and PM Aviation to launch their August 2022 application challenging the tender award to LTE Consulting.
