MEC Kedibone Diale-Tlabela welcomes High Court’s dismissal of case over road maintenance tender

Gauteng MEC for Roads and Transport, Kedibone Diale-Tlabela, has welcomed the Gauteng South High Court ruling to dismiss, with costs, the case over road maintenance tender brought by six claimants.

Welcoming the ruling, MEC Diale-Tlabela said that “this demonstrates the Department’s continued implementation of its litigation policy to protect and promote prudential use of public resources. We hope the decision of the court will deter all who intend to follow this route”.

The six companies, namely (i) Kwagga Holdings (Pty) Ltd; (ii) Taledi Morosi Budling Contractors CC, (iii) Catagrict Implemere (Pty) Ltd; (iv) Mafube Engineering Services; (v) Basic Blue Trading 69 CC; and (vi) Kopano Kofifi Projects CC, had brought applications before the court for breach of contract and to have adjudicator’s Advocate Ghandi Badela award reviewed and set aside.

This after the Advocate had delivered an adjudication dismissing all their claims. They had also claimed he exceeded his powers by overturning awards by previous adjudicator, Mr Lloyd Mogotsi.

In addition to the Department, other respondents included the Member of Executive Council for Roads and Transport and Advocate Ghandi Badela.

The Department, in September 2008, appointed 69 contractors to perform routine road maintenance on provincial roads. This appointment was done after a competitive procurement process.

During December 2008, the Department and each of the claimants concluded NEC3 contracts to perform routine road maintenance for specified regions in the province.

In March 2010, the Department and each of the claimants then concluded an addendum to the main contract, in terms of which, the fixed contract amount fell away for all works done according to a “signed works order with quantities and rates’’.

In March 2012, the Department and the claimants concluded a second addendum. It, amongst others, amended the contract to be effective from 01 April 2011 and terminate on 31 March 2013.

These now formed part of the contractual relationship between the Department and the claimants.  

However, in June 2013, the six claimants referred disputes that had arisen to adjudication. Mr Lloyd Mogotsi was appointed the adjudicator but did not finalise the process within the stipulated timeframes in the contract.  

In 2019, the claimants – dissatisfied with Ms Mogotsi’s failure to finalise the contractual claim- approached the High Court for relief. Their claim before the court were based purely on an alleged breach of contract by the Department and sought a combined payment of R102 million. They also claimed Adv Badela had exceeded his powers as Mr Mogotsi had already made an award prior. They did not, however, claim for the enforcement of any award.

By agreement between parties and a directive of Deputy Judge president, the four applications were heard together. The court, however, intimated that it will cater to differences between the applications in its judgement.

Adv Badela was appointed adjudicator pursuant to Justice J Yacoob order of 2019, who first heard the matter. After pleadings and submissions, in August 2020, the advocate delivered an adjudication dismissing all of the claimants’ claims.

Presiding over the case, Justice AJ van der Berg agreed with the rulings of Adv Badela, the adjudicator, and held that he has dismissed claimants’ claims on merit.

MEC Diale-Tlabela reiterated that the judgement should send a strong message to all contractors, service providers and chancers, that the Department will no longer tolerate any form abuse and will go to great lengths to defend, recover and protect public resources.

For more information, please contact 

Ms Melitah Madiba
Department’s Head of Communications  
Cell: 073 644 9935 

Mr Lesiba Mpya 
MEC’s Spokesperson 
Cell: 078 450 9841 
E-mail pressoffice.gpdrt@gauteng.gov.za