In a dramatic turn of events, the Gauteng Department of Health’s multi-million rand waste management tender award has been thrown into disarray.

The department has successfully secured leave to appeal the High Court’s decision that declared the R526 million tender unlawful.

The saga began in November 2022, when the Gauteng Department of Health issued a tender for medical waste disposal services.

Buhle Waste, a long-standing player in the industry, submitted a bid alongside nineteen other companies. However, the tender process became contentious when the deadline for bids was extended without proper justification. Buhle Waste, suspecting foul play, chose not to challenge the extension at the time.

Months later, the department awarded the contract to Tshenolo Waste (PTY) Ltd and Phuting Medical Waste (PTY) Ltd. Buhle Waste, convinced the extended deadline was illegal, launched a legal challenge. They argued the entire tender process was flawed and demanded it be re-run.

In a judgment delivered on December 4th, 2023, Acting Judge President Ahmed Cajee sided with Buhle Waste.

The court found the department’s extension of the tender deadline to be invalid and declared the entire process unlawful. This meant the contract awarded to Tshenolo and Phuting was effectively nullified. However, the Department and Tshenolo Waste didn’t give up without a fight. They filed papers to appeal the ruling.

Buhle filed counter papers, asking the high court to executive its previous order pending the determination of the department’s leave to appeal the matter in the Supreme Court of Appeal (SCA).

However, the department’s lawyers argued that even if the extension was improper, Buhle Waste had waited too long to challenge it, missing the 180-day window stipulated in the Promotion of Access to Justice Act.

They further claimed Buhle Waste had participated in the extended tender process, rendering their complaint hypocritical.

Judge Cajee acknowledged Buhle Waste’s delay was concerning but found their inaction could be explained by their continued service provision during the extended period. However, he dismissed Buhle’s request to immediately halt the execution of the order, allowing Tshenolo Waste to continue operations while the appeal is heard.

“Having considered the heads of argument and the arguments presented at the hearing of the matter, I am of the opinion that the applicants for leave to appeal have made out a case for leave to appeal to the Supreme Court of Appeal. While it is true that the applicant did seek in the application that served before me, as an alternative relief, that the tender be set aside because it had lapsed and no valid extension had occurred, it did so mainly based on different allegations than the fact that no valid extension had occurred, extending the initial deadline of 17th November 2022.

“I can further find no valid reason why the Applicant didn’t challenge the invalidly extended tender after the 17th of November 2022 within at least the one hundred and eighty days allowed by section 7(1) of the Promotion of Access to Justice Act 3 of 2000. All the documents it needed to do so were already in its possession. In fact, all indications are that a reasonable period to bring such a review would have been even shorter. However, as pointed out in my main judgment, the Applicant was happy to participate in the invalidly extended tender,” said Cajee.

Buhle Waste has also filed papers with the SCA, arguing that the delay in challenging the extension shouldn’t negate the fundamental flaw in the tender process.

Department spokesperson Motalatale Modiba said they welcomed the recent ruling because it prevented the disruption of medical waste services in Gauteng.

“A significant aspect of this decision is the Court’s dismissal of Buhle Waste’s application, along with the imposition of costs. Buhle Waste had sought the enforcement of the initial court order while awaiting the outcome of the appeal, pending its approval. This favorable ruling for the department comes after the department filed an appeal in December 2023, subsequent to the court’s order issued on 30 November,” said Modiba.

“From the outset, the department contested the court’s directive for a review and cancellation of the recently awarded medical waste tender. The recent pronouncement by the High Court reaffirms the principles of justice and strengthens the smooth delivery of essential medical waste removal services within the Gauteng Department of Health.”