The Gauteng Department of Health’s application to appeal a high court ruling, which declared a R526 million tender unlawful, has been criticized as a scheme to exploit government funds, ultimately burdening the taxpayer.

On November 30, the South Gauteng High Court in Johannesburg declared the medical waste tender invalid and subsequently set it aside.

Judge Ahmed Cajee determined that the disputed tender, which was recently awarded by the provincial department of health, had lapsed. After Judge Cajee declared the tender invalid, the department quickly moved to submit legal documents to the court, expressing their intention to appeal the ruling.

According to Buhle’s lawyers, the application sought to ensure that those who were unlawfully awarded the contract could profit from it while the case remains in court.

The director of Fairbridges Wertheim Becker Attorneys, Dhahini Naidu, sent an urgent letter of demand to the attorneys who are representing the department.

She said the filing of the application for leave to appeal appeared to be cynical and may have been done under the mistaken belief that it would result in the suspension of the court order.

“We record that this is mistaken. We request your clients to provide an undertaking confirming the same and that it shall not do so, failing which, we record that we reserve our clients’ rights to take the next steps,” wrote Naidu.

Naidu criticized the department for allegedly abusing court processes with their actions.

“First, and without conceding the competency of your clients’ application for leave to appeal, your clients’ application for leave to appeal was filed within hours of the court order being handed down. Most importantly, this was before the reasons for the court order were handed down. To the extent that the reasons for the court order are necessary for your clients to competently seek leave to appeal, our client reserves its right to challenge the effect of the application for leave to appeal, and any conduct purportedly flowing therefrom.

“Your clients’ intention to speedily file an application for leave to appeal is not motivated by their prospects of success in light of the court a quo’s reasons but by your clients’ intention to implement an unlawful tender pending the appeal. The court order was a finding of unlawfulness based, inter alia, on the rule of law. Your clients’ intention to proceed with implementing the tender would not only make nonsense of the court order but would be a slap in the face for constitutional supremacy,” said Naidu.

The department has received an ultimatum to either formally declare in writing that they will not proceed with the tender or potentially face legal action for their efforts to challenge the high court ruling.

When asked for a comment, Motaletale Modiba, the spokesperson for the Gauteng Department of Health, stated that the department has issued its response and currently has no additional comments to provide.

Last week, Modiba stated that the department believes the court made a mistake in setting aside the tender.

“The case before [the] court involved an application for an interdict on an urgent basis, with Buhle Waste presenting their case in two parts: Part A and Part B. Part A was argued in court on urgent basis on the 21st of November 2023, while Part B, which is the review application, was not yet argued as the court was still hearing the urgent application.

“The department is of the view that the court made an error by ordering a review and setting aside of the tender, as the issue of reviewing and setting aside the tender was not within the scope of the court proceedings at that time. This matter was specifically to be addressed in Part B of the application, which had not been heard yet. Therefore, the court should not have ordered a review or the setting aside of the tender and contract without hearing Part B,” said Modiba.

“Based on these grounds, the Department’s considered position is that the Judge’s decision exceeded the appropriate scope of the judgement. As a result, the department has since filed a Notice for leave to Appeal the Judgement, which then renders this matter Sub Judicare (not yet concluded by the Court).”

The provincial health department awarded the multimillion-rand contract to Tshenolo Waste (PTY) Ltd. and Phuting Medical Waste Management (PTY) Ltd. However, there were concerns about the process, including multiple extensions and questionable practices.

Buhle Medical Waste, the current service provider, took the matter to court, alleging that the tender process was unlawful and plagued with irregularities. The party sought an order to prevent the department from interfering with the contract.