BCC in contempt of court quandary

THE Bulawayo City Council's recent decision to award a parking management system tender to two Harare-based companies could backfire after a company that was originally awarded the tender filed a contempt of court application against the local authority.

Last week BCC awarded Ducretion Logistics (Private) Limited and Lauvax Trading (Private) Limited trading as Propark despite Megalithic having won a court case against the local authority.

The court had ordered BCC not to retender the bid but complete the process which had seen Megalithic winning the bid over six years ago.

To further complicate BCC's position, councillors decided to award the tender to the two companies, ignoring advice from the town clerk Mr Christopher Dube, who had warned that if councillors went ahead with the move it would create a legal impediment.

"Parking management is a procurement issue and should therefore not be placed before council. Council does not have a mandate at law to deal with such tenders.

"It is further important to note that the parking management tender is still before the courts and it has not been resolved. Council cannot ignore this lawful process and go ahead and award to someone else. Council was taken to court for contempt of court and the matter remains pending," reads part of a letter sent by Mr Dube to the mayor, Councillor Martin Moyo.

Mr Dube further noted that it was illegal for council to just award the tender to the two companies without going to tender as this was not following due diligence.

Meanwhile, Megalithic's High Court argument is that the local authority is in contempt as they deliberately ignored Justice Lawrence Kamocha's initial ruling which stated that the decision to re-tender was unfair and capricious towards Megalithic who had come up with the most attractive bid.

"The applicant's case is that the respondents are in flagrant disobedience of the court by failing to award the tender to the best bidder in completion of the tender processes that were remaining as the court order did not give room for the first respondent (BCC) to reconsider the merits of the bids nor to abort the same.

"It is therefore submitted that the respondents have wilfully disobeyed the order that was made by this honourable court by refusing to carry out to completion the remaining tender process. It is submitted that the respondents should be also punished by costs on a higher scale for their unwarranted behaviour which has put applicant out of pocket," reads the part of the heads of argument filed at the High Court.

In the original judgment by Justice Kamocha he set aside the re-tendering process and ordered the local authority to, "carry out the tender process to completion and to carry on with the processes that were still to be completed to their final conclusions."

Justice Kamocha further took a swipe at the local authority, particularly the chamber secretary, Mrs Sikhangele Zhou.

He noted that since she had a legal background, she ought to have known that the original judgment by the court was binding, further ordering the local authority to meet the costs of the application.

"The chamber secretary of the applicant who deposed to the founding affidavit stated that she was a registered legal practitioner of this court. The applicant was legally represented from the onset.

"This matter was handled in a manner that leaves a lot to be desired. It is a proper case for an award of costs on a punitive scale. The applicant is accordingly dismissed with costs on attorney and client scale," reads the judgment.

The initial shambolic bidding process brought the city's tendering system under scrutiny, with accusations of corruption among councillors and directors flying around.

First, Easipark, the South African company that was favourite to clinch the parking deal, was disqualified on allegations of attempting to bribe members of the procurement board to swing the bid in its favour.

The company was readmitted and the tendering process re-done after consultations among stakeholders.

Easipark was disqualified again, after it failed to attend a compulsory tender briefing meeting, which then saw Megalithic being awarded the tender.

Councillors then accused former deputy mayor, Amen Mpofu, of championing the Easipark cause.