Lekhetho Ntsukunyane
FINANCE Minister Dr ’Mamphono Khaketla says the government was within its rights to cancel a multi-million maloti vehicle fleet tender and award it to Bidvest Fleet Company since it faced “an emergency”.
This is according to Dr Khaketla’s answering affidavit to a Commercial Court application by a joint venture company seeking to block Bidvest’s fleet contract with the government.
Dr Khaketla on Monday filed the answering affidavit on behalf of six respondents in the matter, namely Ministry of Finance, its Procurement Unit, Attorney-General Tšokolo Makhethe, Bidvest Bank Limited, Avis Fleet Services (Pty) Limited and Fleetmatics (Pty) Limited respectively.
The joint venture company, comprising Fleet Service Lesotho (Pty) Ltd and Lebelonyane Fleet Solutions (Pty) Ltd, wants the court to issue an order for the respondents to show cause why they cannot be “interdicted and restrained” from contracting Bidvest for the management of the government’s fleet.
The joint venture firm made the application in light of revelations it was the preferred bidder of a tender evaluation report.
In the answering affidavit, which the minister filed through the respondents’ lawyers, Webber Newdigate, Dr Khaketla wants the Commercial Court to dismiss Lebelonyane’s application arguing its representative in the case, Lipalesa Ramphi, has no rights to institute court proceedings on behalf of the company.
Dr Khaketla argues Ms Ramphi does not represent the lead partner of the joint venture – Fleet Service (Lesotho) Pty Ltd.
“I deny that the deponent (Ms Ramphi) to the founding affidavit is authorised to bring the present proceedings. Deponent does not represent the lead partner of the first applicant, which is Fleet Service (Lesotho) Pty Ltd. She is a director of a company which is a junior partner in first applicant – holding 30 percent interest therein,” Dr Khaketla asserts.
“I point out that the lead partner has not joined in these proceedings and there is no indication that it has authorised them. The deponent has not even provided a resolution from the second applicant confirming that she is duly authorised to institute these proceedings on its behalf.”
She argues the joint venture company is not properly registered “in terms of the law”.
“First applicant is a joint venture and thus a partnership. As such, it must be established by a partnership agreement which must comply with certain formalities and Deeds Registry,” says Dr Khaketla.
“Section 2 of the Partnerships Proclamation provides that the deed of partnership ‘…shall be signed by all the partners before a notary or an administrative officer, who shall attest the same accordingly’.
“It will be seen from this agreement that while it says it establishes a partnership it has not been signed before a notary or an administrative officer and not attested before them, as required by section 2.”
On the applicants’ prayer for a review of not only the cancellation of the tender but also of the award of a contract to Bidvest Bank, Dr Khaketla says the government reserved the right to halt the tender process.
“The honourable court is respectfully referred to the terms of the tender which repeatedly made it clear that government could cancel the tender at any time. First applicant (joint venture company) accepted these terms when it submitted its bid. It therefore has no jurisdiction to complain about the government’s cancellation of the tender,” she says.
In their application the joint venture firm accuse Dr Khaketla of using Thabo Napo “who is well known to have a close personal relationship with the current Minister of Finance” to solicit for a M4 million bribe.
However, Dr Khaketla rubbishes the allegations as “utterly false and without any foundation”.
She says the government decided to engage Bidvest because it was faced with a “genuine emergency” caused by the withdrawal of the Avis Fleet. “As a result there was no open tender for fleet services but a six month short-term rental contract was entered into with Bidvest Bank,” the minister says.
“While it is true that the next step was for the preferred bidder to be announced, this did not happen as there was a debate within government as to whether or not the contract, which had been put out to tender, should be proceeded with.
Dr Khaketla adds: “The debate arose due to the fact that the provision of vehicle leasing services had turned out to be much more expensive than government had anticipated with a monthly deficit, as measured against the budgeted amount, of approximately M17 million. It was not anticipated that the new contract put out to tender would reduce that monthly deficit in any significant way.”
She says the government decided to source some of the vehicles through local Basotho entrepreneurs and manage the fleet operation by leasing a computerized fleet management system from Bidvest Bank.
“The anticipation was that, in this way, the cost of government’s fleet would come within the budgeted amounts,” says Dr Khaketla.
Under the new contract, the minister says, the government would buy 600 vehicles and hire another 600 from ordinary Basotho, with Bidvest only managing the fleet.
“The maintenance would also not be undertaken by Bidvest but it would manage the service and maintenance of the vehicles by Basotho workers,” Dr Khaketla says.
While admitting that Bidvest did not submit a tender for the rental of the fleet management system, she argues they were compelled by an emergency.
“We were faced with an emergency. There was just no time for the whole tender process to be gone through as this would take months and government did not have months available to it as the short-term rental contract with Bidvest was expiring at the end of June,” says Dr Khaketla.
“In any event, as I mentioned hereunder, it was not I alone who awarded the contract but myself together with the entire cabinet.”
