Did Zondo Commission able to unearth various wrongs without being Partial?
South Africa had in recent years witnessed a proliferation of commissions of inquiry. Though their purposes have varied immensely, their primary role had been to serve as a truth ?nding mechanism, to unearth various wrongs and to advise the government on the manner in which such wrongs may be corrected.
South Africa's judicial commission of inquiry into the allegation of State Capture, Corruption, and Fraud in the Public Sector including Organs of State, was initiated following a report by the then-Public Protector, Thuli Madonsela, in October 2016.
In January 2018 former President Jacob Zuma appointed the Deputy Chief Justice of South Africa, Mr. Raymond Zondo to lead the commission. The former President Jacob Zuma resigned his office on February 14, 2018.
The Commission held its first public hearing on 20 August 2018. After four years and 278 witnesses, Judge Raymond Zondo formally handed the first part of the report of to President Cyril Ramaphosa?on 4 January?2022. Part two was handed over on 1 February 2022, part three on 1 March 2022 and part four on 29 April 2022. The fifth and sixth reports were handed to the President on 22 June 2022.
Why did the Judicial commission refused Castle Terminal Co., from making its submission regarding SABC Corruption and Fraud. Including Eskom Capture, Corruption and Fraud conducted by Aurecon, Bidvest Electrical commonly known as Voltex Lighting?
However, this article will focus on Eskom Capture, Corruption and Fraud conducted by Aurecon and Bidvest Electrical Commonly known as Voltex Lighting.
For Breaching or Violating Section 217 (1) of the Constitution, Section 3 (1) of Public Finance Management Act No. 1 of 1999. (hereinafter referred to as PFMA) read with Schedule 2 thereto which provides that the latter Act is applicable to Eskom.
Your attention is also drawn to Paragraph 16 of the National Treasury Regulations dealing with Supply Chain Management and issued during March 2005 in terms of Section 76 of the PFMA above.?
When they were doing business with Eskom and benefited unlawful in the awarding of tenders.
Today let's question the judicial commission of inquiry that inquired into allegation of state capture, corruption and fraud in public sector including organs of state. Colloquially known as "the Zondo Commission".
Our focus should be on Aurecon, and Bidvest Electrical commonly known as Voltex Lighting when they were doing business with Eskom. Whether they Captured Eskom, whether they conducted Corruption and Fraud at Eskom, to what extent and by whom.
But before we start questioning the judicial commission of inquiry:
Whether Zondo Commission was able to unearth various wrongs without being Partial?
Whether Zondo Commission truth finding mechanism was not Partisan?
We need to understand the terms or reference of the Judicial Commission as follows:
The Commission", was appointed by President Jacob Zuma in January 2018, subsequently Government Gazette No. 41403 dated 25 January 2018 Proclamation No. 3 of 2018, was given under the Hand and the Seal of the Republic of South Africa at Pretoria on the 23rd day of January 20218, signed by President Cyril Ramaphosa
SCHEDULE:
TERMS OF REFERENCE OF THE:
JUDICIAL COMMISSION OF INQUIRY TO ENQUIRE INTO THE ALLEGATIONS OF STATE CAPTURE, CORRUPTION, AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE
A Judicial Commission of Inquiry ("the Commission") is hereby appointed in terms of Section 84(2)(f) of the Constitution of the Republic of South Africa, 1996. The Commission is appointed to investigate matters of public and national interest concerning allegations of state capture, corruption and fraud.
1.1. whether, and to what extent and by whom attempts were made through any form of inducement or for any gain of whatsoever nature to influence members of the National Executive (including Deputy Ministers), office bearers and/or functionaries employed by or office bearers of any state institution or organ of state or directors of the boards of SOE's. In particular, the commission must investigate the veracity of allegations that Deputy Minister of Finance, Mr. Mcebisi Jonas and Ms. Mentor were offered Cabinet positions by the Gupta family;
1.2. whether the President had any role in the alleged offers of cabinet positions to Mr. Mcebisi Jonas and Ms. Mentor by the Gupta family as alleged;
1.3. whether the appointment of any member of the National Executive, functionary and / or office bearer was disclosed to the Gupta family or any other unauthorised person before such appointments were formally made and/or announced, and if so,
whether the President or any member of the National Executive is responsible for such conduct;
1.4. whether the President or any member of the present or previous members of his National Executive (including Deputy Ministers) or public official or employee of any state-owned entities (SOEs) breached or violated the Constitution or any relevant ethical code or legislation by facilitating the unlawful awarding of tenders by SOE's or any organ of state to benefit the Gupta family or any other family, individual or corporate entity doing business with government or any organ of state;
1.5. the nature and extent of corruption, if any, in the awarding of contracts, tenders to companies, business entities or organizations by public entities listed under Schedule 2 of the Public Finance Management Act No. 1 of 1999 as amended.
1.6. whether there were any irregularities, undue enrichment, corruption and undue influence in the awarding of contracts, mining licenses, government advertising in the New Age Newspaper and any other governmental services in the business dealings of the Gupta family with government departments and SOE's;
1.7. whether any member of the National Executive and including Deputy Ministers, unlawfully or corruptly or improperly intervened in the matter of the closing of banking facilities for Gupta owned companies;
1.8. whether any advisers in the Ministry of Finance were appointed without proper procedures. In particular, and as alleged in the complaint to the Public Protector, whether two senior advisers who were appointed by Minister Des Van Rooyen to the National Treasury were so appointed without following proper procedures;
1.9. the nature and extent of corruption, if any, in the awarding of contracts and tenders to companies, business entities or organizations by Government Departments, agencies and entities. In particular, whether any member of the National Executive (Including the President), public official, functionary of any organ of state influenced the awarding of tenders to benefit themselves, their families or entities in which they held a personal interest;
The Regulations, as amended, were published in March 2018 and confer upon the Zondo Commission various powers intended to preserve secrecy and regulate the admissibility of evidence before it.
Regulation 15 expressly empowers the Zondo Commission to determine its own procedures. This power was not unique to the Zondo Commission, as stated in S v Naude 1975 SA 681 “it was an inherent right of a commission of inquiry”.
The Zondo Commission had determined its own Rules (Notice 396 of 2018) which regulate amongst others the manner in which evidence had to be presented and the manner in which implicated and or interested persons may make submissions.
The Zondo Commission drew its investigative powers from the Commissions Act which accords it with, amongst others, powers of subpoena, protects it against interference and obstruction and empowers the President to promulgate its regulations.
These Terms of Reference may be added to, varied or amended from time to time.
The Terms of Reference of the Zondo Commission accord it with quasi-judicial powers to subpoena, cross examine witnesses and to refer a matter to prosecution.
Its quasi-judicial nature should not lead an individual to confuse its proceedings with that of a court of law as they are disparate for the following reasons:
Albeit not being purely judicial in nature, and although its ?ndings are not binding on the President, these ?ndings may have damning repercussions for persons condemned therein and carry with them a possibility of criminal or civil prosecution.
All organs of State will be required to cooperate fully with the Commission.
The Commission Act, 1947 (Act No. 8 of 1947) shall apply to the Commission, subject to such amendments and exemptions as may be specified by proclamation from time to time.
The Commission shall submit its report and recommendations to the President within 180 days of the commencement of the Commission.
Regulations shall be made, after consultations with the presiding judge, in terms of the Commissions Act, 1947 and shall apply to the Commission in order to enable the Commission to conduct its work meaningfully and effectively and to facilitate the gathering of evidence by conferring on the Commission powers as necessary, including the power to enter and search premises, secure the attendance of witnesses and compel the production of documents.
The Commission shall where appropriate, refer any matter for prosecution, further investigation or the convening of a separate enquiry to the appropriate law enforcement agency, government department or regulator regarding the conduct of a certain person/s.
Regulations contemplated above shall also make provision for the resourcing and employment of staff of the commission.
Questions:
Why Zondo Commission refused to make findings concerning Aurecon and Bidvest Electrical (Voltex Lighting) whether they Capture Eskom, whether they are corrupt, whether they conducted fraud, to what extent and by whom? Because they were reported to the Zondo Commission?
Zondo Commission Volumes are incomplete because they focused only on the Gupta Family, while the Judicial Commission, clause 1.4. of the terms of reference, mandated the Judicial Commission to also focus on other Families, individuals or corporate entity doing business with the government or any organ of state.
Zondo Commission reports lack part of Aurecon and Bidvest Electrical (Voltex Lighting) for breaching or violating Section 217 (1) of the Constitution, Public Finance Management Act, Treasury Regulations when they were doing business with Eskom as organ of state in 2010/ 2011.
More so because there was tangible evidence reported to be investigated by the Zondo Commission and a commitment was made to investigate the matter by the commission.
Request for the investigation of Aurecon and Bidvest Electrical (Voltex Lighting) was submitted to the attention of the Zondo Commission in time, right at beginning of the Judicial Commission, after the Chairman of the Zondo Commission break news on ENCA television news articulating the Judicial Commission terms of reference.
The commission’s spokesperson, Mbuyiselo Stemela, confirmed that the commission had investigative powers and resources.
He also confirmed receiving Teke’s request to appear before the commission to City Press.
The Director General of Public Enterprise Department also drew attention to Castle Terminal Co., to bring forward such information to the Zondo Commission or enforcement agencies for further action.
Most important note, was that the Director General of the Public Enterprise Department advised that the Department was constrained by considerations of proper governance to get involved in contractual dispute involving Eskom as a State-Owned Company as that will be regarded as interference by the shareholder.
Zondo Commission rebuffed Castle Terminal Co from testifying about the manner in which Aurecon and Bidvest Electrical (Voltex Lighting) breached or Violated the Constitution, Public Finance Management Act, Treasury Regulations by facilitating the unlawful awarding of tenders to benefit themselves and the nature and the extent of Eskom Capture, Corruption and Fraud.
It has to be noted that Castle Terminal Co., first meeting introduced all the evidence pertaining to the corruption conducted by Aurecon and Bidvest Electrical (Voltex Lighting) to the Zondo Commission Official at Commission offices. The second meeting was with Kevin Naidoo Zondo Commission Official at the Zondo Commission Offices.
And the third meeting Castle Terminal Co was refused by the Zondo Commission, to make its submission and the reason alluded to Castle Terminal Co in a meeting at the Zondo Commission's Offices by two personnel a male and a female representative, was that the Zondo Commission was making inquiry to the Gupta Family only.
Aurecon and Bidvest Electrical (Voltex Lighting) were protected to precede to the Zondo Commission, because they are believed to be the darling of the organ of state known Eskom.
It is important to consider the fact that President Mr. Cyril Ramaphosa was the Non-executive Chairman of Bidvest Corporate. Mr. Brian Joffe was the Chief Executive and Mr. Stanley Green was the Chief Executive of Bidvest Electrical commonly known as Voltex Lighting. and the late Professor Jakes Gerwel was the Chairman of Aurecon South Africa.
Mr. Brian Dames was the Group Chief Executive of Eskom Holdings Limited.
When Aurecon Group and Bidvest Electrical (Voltex) breach or violate Section 217 (1) of the Constitution of the Republic of South Africa, Act 108 of 1996, PFMA and Treasury regulations and Supply Chain Management at Eskom in 2010 and 2011.
Did Zondo Commission rebuff Castle Terminal Co., from testifying because they were protecting all the above-mentioned names and the fact that the Public Enterprise Department Minister, the late Mr. Pravin Gordhan and the President of South Africa Mr. Cyril Ramaphosa, owned shares in some of South Africa largest companies including Bidvest and Bidvest Electrical (Voltex Lighting)?
See below, the companies that Minister Pravin Gordhan owned shares in including Bidvest and Bidvest Electrical commonly known as Voltex Lighting.
May Minister Pravin Gordhan Soul Rest in Peace and my condolence to the family
This was revealed by Parliament's joint committee on ethics and members interests in its register of members interests for 2023. To ensure transparency and build public trust and confidence in Parliament, members declare their significant business holdings, shared owned and gifts received.
The register only includes declarations from members of Parliament (MP's), which means that President Cyril Ramaphosa is not required to declare his interests. as follows, including Bidvest and Bidvest Electrical (Voltex Lighting) below:
Public Enterprises Minister Gordhan was the shareholder representative of the government at South Africa's State-owned enterprises (SOE's), including Eskom Holding Limited.
President Cyril Matamela Ramaphosa is the leader of the shareholder representative of the government at South Africa's State-owned enterprises (SOE's), including Eskom Holding Limited listed under Schedule 2 of the Public Finance Management Act No. 1 of 1999 as amended.
Public Enterprises Minister Pravin Gordhan role was providing oversight of these SOE's while he and President Cyril Ramaphosa are shareholders of Bidvest and Bidvest Electrical (Voltex).
Following the above-mentioned facts, did Zondo Commission rebuff Castle Terminal Co from testifying because it was protecting Aurecon and Bidvest Electrical (Voltex), because they are known to be the darling of the State? Should we regard this question as a mere speculation or not?
An interrogative expression was used to test knowledge of who benefited the Gupta Family or any other family, individual or corporate entity doing business with the government or any organ of state.
It is not true that Zondo Commission had to focus only on the Gupta Family as implicated, other Implicated families or individual or corporate entities doing business with the government or any organ of state were supposed to come before the Zondo Commission. As per clause 1.4. of the Judicial Commission Terms or Reference.
City Press article dated 17 March 2019 wrote that the commission of inquiry into state capture has apparently discouraged a businessman from testifying before it about how a multimillion-rand Eskom tender was allegedly stolen from his company.
Oupa Teke, the owner of Castle Terminal Co., wants to testify about how Bidvest Electrical, Aurecon and Voltex Lighting “captured” a power utility contract and excluded his company, according to a written request he sent to the commission, which City Press has seen.
It has to be placed on record that City Press dated the 17 March 2019 changed the narrative by not informing the entire truth to the nation about the content and the context of the written request, Castle Terminal Co sent to the commission, which City Press had seen.
Castle Terminal Co., wanted to testify to the Zondo Commission about the Eskom Capture, the nature and extent of Corruption, and Fraud in the awarding of contracts, tenders when Aurecon and Bidvest Electrical (Voltex Lighting) were appointed as the Eskom Bid specification committee working together with Eskom Adjudication committee and Eskom Evaluation committee.
The Bidvest Group Limited ANNUAL INTEGRATED report 2011. Wrote that Bidvest Electrical is used in the Business context and trading conditions. Therefore, it means Voltex Lighting is not used in the Business context and trading conditions of Bidvest group.
Background of the written request sent to the Zondo Commission:
It is common cause that during 2010 Aurecon and Bidvest Electrical (Voltex Lighting) conducted an Audit on behalf of Electricity Supply Commission (Eskom). ?
This is evidenced by the pre-tender audit report. ?The relevance of stating that Aurecon and Bidvest Electrical (Voltex Lighting) conducted 15 of the Eskom fossils fired power stations pre-tender audit is occasioned by the denial on the part of Eskom that Aurecon and Bidvest Electrical (Voltex Lighting) was responsible for conducting 15 of the Eskom fossils fired power stations pre-tender audit at Eskom Power Stations for the purpose of preparing for the scope and specifications of the tender in question.?
See below: the evidence attached that Aurecon and Bidvest Electrical (Voltex Lighting) conducted 15 of the Eskom fossils fired power Station.
The content and context of this response will demonstrate the necessity of reiterating this fact.
The 15 Eskom fossils fired power stations pre-tender audit recommended the installation of certain electrical lighting fixtures geared towards saving energy.? In order to implement the said recommendations, Eskom decided to outsource the required services.?
To this end, on or about 23 November 2010, Castle Terminal Co (Pty) Ltd (hereinafter referred to as Castle Terminal Co) was invited by email to tender for the supply and installation of lighting fixtures for Fossil Fired Power Station.? The scope of the tender project is summed up in a Tender Document No: GEN 3135 which reads thus:
“To supply and install lighting fixtures for six (6) Fossil Fired Power Stations to realise energy efficiency savings at the Power stations.” See below the attached copy of the invitation letter:
The scope of the tender project includes, storage of new and old fittings, the save disposal of all redundant items, all miscellaneous material, costs and all labour associated with implementation or replacement of the items contained within the Bill of Quantities.? The invited service providers or contractors were also expected to provide proof of adherence to the SANS lumen levels by providing lux samples after installation.
On or about 03 December 2010 Castle Terminal Co., duly tendered to render services as prescribed in the above-mentioned Tender Document Gen 3135 as summarised herein-above.?
It is worthy to note that the recommendations of the 15 Eskom fossils fired power stations pre-tender audit prescribed the installation of specified electrical products which are solely supplied by Aurecon and Bidvest Electrical (Voltex Lighting), at least in South Africa.?
See below: the attached electrical products which solely supplied by Aurecon and Bidvest Electrical (Voltex Lighting) with definition and description required to understand the meaning of the brand codes specified in Tender GEN3135:
As Castle Terminal Co., was aware of this, it tendered using the price list of the electrical material from AC/DC Company (hereinafter referred to as AC/DC) as proposed material.?The letter confirming that the AC/DC proposed material will be used for the required services was attached to Castle Terminal Co., tender documents that were delivered on 03 December 2010.
The reason Castle Terminal Co. mention that it was aware that Aurecon and Bidvest Electrical (Voltex Lighting) prescribed the installation of specified electrical products which are solely supplied by Aurecon and Bidvest Electrical (Voltex Lighting), at least in South Africa.
It is the fact that Castle Terminal Co had to buy Aurecon and Bidvest Electrical (Voltex Lighting) Comprehensive Guide Catalogue in order to know and to understand the definition of brand codes and description of the designed types of lights required in the Bill of Quantity written in Tender GEN 3135.
See below: The attached front cover of the Comprehensive Guide Catalogue that explained the definition and description of the energy efficiency lights:
The Bill of Quantity in the pre-tender audit sheet report and tender GEN 3135 was written in brand codes. The Bill of Quantity specified in proprietary specification or brand codes, breached or violated the Constitution, Public Finance Management Act and Treasury Regulations. Because Public Finance Management Act No. 1 of 1999. preferred Standardized specification.
See below: The attached Grootvlei Power Station Audit sheet written in Aurecon and Bidvest Electrical (Voltex Lighting) brand codes: Check Existing Luminaire and Proposed Luminaire written in brand codes:
This means that the Castle Terminal Co., tendered on the strength of the fact that it was to use electrical material other than the one provided by Aurecon and Bidvest Electrical (Voltex Lighting). The relevance of this will continue to recur in this correspondence.
The reason Castle Terminal Co believed that Aurecon and Bidvest Electrical (Voltex Lighting) Captured Eskom are the fact that in 2002 Aurecon and Bidvest Electrical (Voltex Lighting) saw the on-going energy crisis that it has been long time coming. It was in 2002, that Aurecon and Bidvest Electrical (Voltex Lighting) began to prepare for what they saw as the in-inventible in terms of electricity capacity.
Aurecon and Bidvest Electrical (Voltex Lighting) formed Energy Service Division, where the task was to concentrate on energy efficiency solutions that was achieved through the introduction of the latest technologies in lighting.
During the last three years 2002, 2003 and 2004, they established themselves as the leading lighting ESCO (Energy Services Company) as part of the Eskom (Demand Side Management) DSM initiative, and they were currently involved in projects that will save 40 Megawatts in power on an annualized basis.
Their Comprehensive guide catalogue and audit sheets- Grootvlei Power Station, Boiler, Coal State and Outside the Plant attached above bears testimony to their commitment to only offer energy saving products and services to Eskom Holding Limited in South Africa.
Castle Terminal Co's sufficient ground of explanation that Aurecon and Bidvest Electrical (Voltex Lighting) Captured Eskom are encapsulated from C2.2 the Bill of Quantities Arnot Power Station tender GEN3135 document. See C2.2 below.
It is important to look at the information written below in C2.2 bill of quantity Existing and Proposed material written in Brand Codes for example:
B10-BULKHEAD written below Existing material in C2.2. Confirm that Aurecon and Bidvest Electrical (Voltex Lighting) Captured Eskom when they were contracted by Eskom Holding Limited to conduct audit in the 15 Eskom fossil fired power stations in 2002.
They wrote pre-tender audit, reproduce the tender, tender and they were awarded the supply and installation of energy efficiency lighting at all 15 Eskom Fossil Fired Power Station, later they maintained this energy efficiency lights, the first contract duration remained for the following years: 2002, 2003, 2004, 2005, 2006, 2007, 2008, and their contract ceased to be active in 2009.
Eskom Holding Limited appointed Aurecon and Bidvest Electrical (Voltex Lighting) as Eskom Bid Specification Committee, Eskom permitted Aurecon and Bidvest Electrical (Voltex Lighting) to write 15 Eskom Fossil fired power stations pre-tender audit report in their brand codes or proprietary specification breaching and violating the constitution, PFMA and Treasury Regulations.
They tendered in the same project, and they were awarded all 15 fossils fired powered stations to supply and install energy efficiency lighting and maintained those lights as part of Demand Side Management contract from 2004 to 2009, when the contract ceased to be active. Bidvest Electrical (Voltex lighting) was appointed as Eskom main contracted supplier of the Existing brand codes as illustrated in C2.2 bill of quantity below.
Eskom Adjudication committee and Eskom Evaluation committee breached or violated the constitution by accepting Eskom Bid Specification Committee, 15 Eskom fossils fired power stations pre-tender audit reports, written in brand codes in 2002. Tender documents bill of quantity was also written in brand codes. Supplied and installed energy efficiency solely supplied by them, in 2002 to 2009. Against Eskom policy known as Eskom Standard condition of tenders 2008.
Eskom Adjudication committee and Eskom Evaluation Committee permitted Eskom Procurement department to Fraudulently amassed Aurecon and Bidvest Electrical (Voltex Lighting) with Hundreds of Millions of Rands against Section 217 (1) of the Constitution, Section 3(1) of Public Finance Management Act No 1 of 1999, and paragraph 16 of the National Treasury Regulations dealing with Supply Chain Management and issued during March 2005 in terms of Section 76 of the PFMA.
In 2010 Aurecon and Bidvest Electrical (Voltex Lighting) the darling of Eskom Holding Limited revived the Energy efficiency lighting Contract. This time Aurecon was contracted as the main Contractor. Aurecon subcontracted Bidvest Electrical (Voltex Lighting). See Bidvest Electrical Voltex Lighting letter attached Below:
In 2010 Aurecon and Bidvest Electrical (Voltex Lighting) they were focusing on Proposed part written brand codes as illustrated in C2.2 bill of quantity above. For example:
B10-2XPL9-LA brand coded lights, were solely supplied by Aurecon and Bidvest Electrical (Voltex Lighting). They wrote pre-tender audit contract number 4600024744 dated 3 September 2010, reproduce the tender GEN3135, tendered on the 23 November 2010 and they were awarded to supply and install energy efficiency lighting at all 15 Eskom Fossil Fired Power Station again on the 19 December 2010.
That is the reason Castle Terminal Co strongly believed that Eskom Capture, Corruption and Fraud was driven by Aurecon and Bidvest Electrical (Voltex Lighting) in Eskom. The relevance of this will continue to recur in this correspondence
On the 19th of December 2010, Castle Terminal Co., was invited by Eskom to attend a meeting which was scheduled to be held at Megawatt Park on 20 December 2010.? Castle Terminal Co., obliged to the request, and Mr. OL Teke on its behalf duly attended the meeting.?
It is worthy to note that the scope of work clause 3 of the minutes of meeting was not designed and compiled by Mr. Narain Singh, Chief Engineer as stated. To supply and install fixtures for 6 fossil fired power station to realise energy efficiency savings at the Power Stations.
The scope of work was prepared by Aurecon and Bidvest Electrical (Voltex Lighting) as mentioned in Bidvest Electrical (Voltex Lighting) Letter attached above.
Chief Engineer Mr. Narain Singh employee of a State-owned entity known as Eskom breached or violated the Constitution, PFMA and Treasury Regulations and Eskom Standard Condition of Tender by facilitating the unlawful awarding of tenders by Eskom to benefit Aurecon and Bidvest Electrical (Voltex Lighting).
Eskom Tender Committee violated or breached the constitution or any other relevant ethical code or legislation by permitting Aurecon and Bidvest Electrical (Voltex Lighting) to be appointed as Eskom Bid Specification committee, to write specification in their brand codes, to tender and to award themselves tenders they specified, to supply and install material solely supplied by them.
See the minutes of the meeting attached below:
In the said meeting Castle Terminal was informed that its bid to render services was successful in respect of two power stations, namely Grootvlei and Arnot.? Further, Eskom, requested a discount of R1.3m on the pricing tendered by Castle Terminal Co.
It should be mentioned that it became apparent that Eskom did not base the requested discount on any calculation.? The basis of this assertion is premised on the response received after Castle Terminal Co., inquired on how the requested discount was arrived at, namely that Castle Terminal Co., may distribute the requested discount of R1.3m at their discretion and as they deem fit and appropriate.?
Castle Terminal Co. acceded to the request for discount after explaining to Eskom tender Committee that discount to the value of R1.3 million will cause a severe consequence in terms of the operations of the project. The committee did not want to understand they went ahead and deduct R1.3 million.
Castle Terminal Co., was later provided with a copy of the proceedings of the said meeting.? The abovementioned minutes were signed by Mr. OL Teke, of Castle Terminal Co on the 21 December 2010. ?Castle Terminal Co., agreed with the contents of the said meeting except that the discussion and agreement about the discount of R1.3 million was omitted.
Reasons for Discount was based on greed and Corruption as follows:
Eskom tender committee request for R1.3 million was influenced by greed and corruption based on agreement between Aurecon and Bidvest Electrical (Voltex Lighting) and Eskom. If Eskom was not influenced by greed and corruption, it could have disclosed the requested discount in tender GEN3135 Bill of Quantity and in the minutes of the meeting.
The aim of the discount was to dislodge or was to force Castle Terminal Co out of secured financial position. It was to make sure that Castle Terminal Co does not make profit. It was to make sure that Castle Terminal Co become discouraged. It was to make the economic situation of Castle Terminal Co to become less strong in terms of the delivery of the project.
The aim of Eskom was to push Castle Terminal Co out of the project. So that Aurecon and Bidvest Electrical (Voltex Lighting) continue to supply and install material solely specified by them in 15 Eskom Fossil Fired Power Stations.
Eskom paid Aurecon and Bidvest Electrical (Voltex Lighting) around R60 million for initiating the project, auditing and design through writing of specification in brand codes solely supplied by them. Around R60 million was paid by Eskom without considering the fact that brand codes written in 15 Eskom pre-tender audit reports breached or violated the Constitution.
Subsequently Eskom released tender GEN3135 for six (6) Power Stations out of 15 Power Stations Audited and designed. The remaining 9 Power Station audited and designed were kept aside. Out of Six power stations tendered for. Four was awarded back to Aurecon and Bidvest Electrical (Voltex Lighting).
The remaining two power station Grootvlei and Arnot was awarded to Castle Terminal Co. In a way that was determined and intentional that Eskom push or force Castle Terminal Co out of the project.
Once Eskom had achieved the mandate of pushing Castle Terminal Co out. They re-invited Aurecon and Bidvest Electrical (Voltex Lighting) as if it was tendering for a new project. They did not advertise the tender.
Eskom then awarded two power station taken by force from Castle Terminal Co to Aurecon and Bidvest Electrical (Voltex Lighting) plus the nine Eskom Power Station that were kept aside plus the 4 powers stations that were awarded already to Aurecon and Bidvest Electrical (Voltex Lighting).
Aurecon and Bidvest Electrical (Voltage Lighting) continue to supply and install energy efficiency brand coded material to 15 fossil fired power stations. Without any competition. They maintain those light for a period of not less than seven years.
The maintenance contract became what we call Demand Side Management Contract. Another, + or - R60 million was paid to Aurecon and Bidvest Electrical (Voltex Lighting) for supplying and installing efficiency lighting, after specifying 15 Eskom fossils fired stations pre-tender audit reports. that was a complete abuse of power, corruption and fraud. They breached or violated the Constitution.
Finally, Aurecon and Bidvest Electrical (Voltex Lighting) received the total amount of +or - R240 million for writing specification in brand codes, solely supplied and installed by them. Not forgetting the amount paid to Aurecon and Bidvest Electrical (Voltex Lighting) for Heat Ventilation Air-condition and Water Heating audit and design including supplying and installation.
Lately Bidvest Electrical (Voltex Lighting) negotiate with procurements department of big companies to release expression of interest. Those Big companies' requirements coerce any company responding to EOI to supply Bidvest Electrical (Voltex Lighting) products. Therefore, interested companies will obtain price list from Bidvest Electrical (Voltex Lighting).
Once the Company that released the expression of interest is happy, that any company interested in the EOI, was acknowledged by Bidvest Electrical (Voltex Lighting), they release a tender and the company that was acknowledged by Bidvest Electrical (Voltex Lighting) will be awarded the tender. To window dress between Bidvest Electrical (Voltex Lighting) and the company that released the tender.
That is called community development, without a proper upliftment of smaller companies.' Smaller companies are not given an opportunity to compete favourably in the market. They facilitate the deal between Bidvest Electrical (Voltex Lighting) and the company that released the tender on behalf of Bidvest Electrical (Voltex Lighting).
In other words, the Expression of Interest coerce small companies to buy directly from Bidvest Electrical (Voltex Lighting) or lose the deal.
We also have to remember those that are known as shareholders of big companies most of them are politician, whom they are seen to be against window dressing. While at night they are perpetuating window dressing on the other hand.
Preliminary Construction Agreement:
The preliminary construction agreement was also signed on the 21 December 2011.?As indicated above, the discounted amount of R1.3 million was not reflected in the preliminary agreement.?
The total value excluding VAT for Grootvlei and Arnot Eskom Power Station was R9 358 000.00, minus the R1 300 000.00 equaled to R8 058 000.00.
The discount of R1 3000 000.00 is deliberately omitted.
The Total Amount of the Project was introduced as R8 058 000.00. As if a discount was never deducted.
See the attached Notice of Acceptance below:
Castle Terminal Co., did not deem it necessary to raise the issue of the R1.3million discount regardless of its commercial importance. Because the issue of the omitted R1.3 million was already raised on the minutes of the meeting. When Castle Terminal Co question the omission of R1.3 million before signing the minutes of the meeting. No one responded.
The preliminary agreement referred to above provided that Castle Terminal Co., was to commence rendering the agreed services with effect from 03 January 2011.? Of worthy to note is the fact that Aurecon and Bidvest Electrical (Voltex Lighting), which conducted the 15 Eskom fossils fired power stations pre-tender audit also tendered to offer the same services as well.?Aurecon and Bidvest Electrical (Voltex Lighting) was awarded the bulk of the tender.?As follows:
Aurecon and Bidvest Electrical (Voltex Lighting) were awarded the following four (4) Power Stations from Tender GEN3135:
Tutuka kW Savings 1,002,14 and GWh savings 7.89
Hendrina kW Savings 436.75 and GWh savings 3.54
Komati kW Savings 278.31 and GWh 2.08
Camden kW Savings 323.09 and GWh 2.46
Castle Terminal Co., was awarded the following two (2) Power Stations from Tender GEN 3135:
Arnot kW Savings 289.93 and GWh 2.12
Grootvlei kW Savings 293.56 and GWh 2.21
Of worthy to note is the fact that Eskom Holding Limited Supply Core Clause, subcontracting clause 23 state that:
If the contracted supplier known as Aurecon, subcontract work. The contracted supplier known as Aurecon is responsible for providing the goods as if the contracted supplier known as Aurecon had not subcontracted.
See the Project Organisation below:
This contract applies as if a subcontractor's employees and equipment of Bidvest Electrical known as Voltex, were of the contracted supplier known as Aurecon.
If the purchaser known as Eskom instruct the contracted supplier known as Aurecon to submit the name of each proposed subcontractor known as Bidvest Electrical (Voltex) to the purchaser known as Eskom for acceptance, a reason for not accepting the proposed subcontractor known as Bidvest Electrical (Voltex), is that the subcontractor's appointment will not allow the contracted supplier known as Aurecon to provide the goods.
The contracted supplier known as Aurecon does not appoint a proposed subcontractor known as Bidvest Electrical (Voltex) until the purchaser known as Eskom has accepted the subcontractor known as Bidvest Electrical (Voltex).
Read the attached Eskom Holdings Supply Contract Core Clauses:
Subcontracting clause 23, 23.1 and 23.2 below:
领英推荐
Initial Suspicion that Use, of Material from Aurecon and Bidvest Electrical (Voltex) is Peremptory:
In pursuit of the preliminary agreement Castle Terminal Co., carried out a site inspection at both Grootvlei and Arnot Power Station on the 31 December 2010.? This inspection was geared towards preparing accommodation for the workers and also personally experiencing the site and what was required to be done.?
On the 3-5 January 2011, Castle Terminal Co., made further arrangements for its employees to be inducted and to attend medical check-up.? Thereafter the Eskom Power Station Project Manager ensured that they receive the access cards.?
It was during these visits that Castle Terminal Co., requested, and was furnished with, the copies of the pre-tender audit report.? A copy of the said pre-tender audit report is attached hereto as Annexure “C”.
Of worthy to note is the fact that Bidvest Group Limited Annual Integrated Report 2011. Bidvest Corporate Operational Review use the name Bidvest Electrical and not Voltex. In the business context and trading conditions.
Bidvest Electrical is the electrical distributor in South Africa. The division comprises 73 general electrical distributors and eight specialised divisions, including energy services, power sources, power distribution and engineering and project management.
Perusal of the pre-tender audit report yielded information that Aurecon and Bidvest Electrical (Voltex) was involved in no small degree in the 15 Eskom fossils fired power stations pre-tender audit process.?
Suffice it to state that Aurecon and Bidvest Electrical (Voltex Lighting) was the chief author of the 15 Eskom fossils fired power stations pre-tender audit report on the basis of which the tender was issued.? That Aurecon and Bidvest Electrical (Voltex Lighting) also tendered to render the services it recommended, and consequently was awarded the bulk of the tender is common cause.
The letter inviting that Aurecon and Bidvest Electrical (Voltex Lighting) Tendered:
See the attached letter document below:
That, effectively Aurecon and Bidvest Electrical (Voltex Lighting) compiled the 15 Eskom fossils fired power stations pre-tender audit in contract number 4600024744 dated 3 September 2010 in which it recommended certain services that it can render and proceeded to ‘successfully’ tender for those services.
Of significance is that it was at that stage when the Grootvlei Eskom fossil fired power station pre-tender audit report was furnished. When Castle Terminal Co., came to the realisation of the relevance and importance of Aurecon and Bidvest Electrical (Voltex Lighting) material as they are strictly specified in the 15 Eskom fossil fired power stations pre-tender audit report and Bill of Quantities.
Aurecon and Bidvest Electrical (Voltex Lighting) responsibilities:
Aurecon was providing a lead consulting and project management role. Aurecon was performing or doing Heat Ventilation Air Conditions and Water Heating Audits and designs whilst Bidvest Electrical (Voltex Lighting) was acting as a Subcontractor for the lighting and Occupational Sensor switching audit and designs.
Aurecon had established the audit and design criteria in association with the Eskom representative and Bidvest Electrical (Voltex Lighting) was managing the progress and the quality aspect of the projects.
Aurecon was to provide the interface with the client as well as the quality assurance functions.
That is the reason Castle Terminal Co believed that Eskom appointed Aurecon and Bidvest Electrical (Voltex Lighting) as Eskom Bid Specification Committee.
It has to be noted in parenthesis that at the time when the tender documents were submitted, the Grootvlei Eskom fossil fired power station pre-tender audit report and the scope of the specifications in the Bill of Quantities were not availed to Castle Terminal Co., hence the belated realisation.
This raised a suspicion that the preferred service providers might be strictly required to use the material solely provided by Aurecon and Bidvest Electrical (Voltex Lighting), notwithstanding the fact that other similar material available at other electrical suppliers could produce the same or better output.
As this suspicion could not be left to chance, Castle Terminal Co., made a decision that clarity should be sought from Eskom in a properly constituted meeting at the first available opportunity so that it can be formally discussed.? ?
This opportunity presented itself only on 14 January 2011 when this matter was discussed.? Before one can traverse deeply into the discussion pertaining to this, it is deemed better to continue chronicling the events so as not to disturb the sequence which thus far has characterised the contents of this correspondence. The picture will become conspicuously evident in the chronology.
Signing of the Final Construction Contract by Castle Terminal Co:
On 12 January 2011, Mr. OL Teke of Castle Terminal Co., signed a final construction agreement between Eskom and Castle Terminal.? He did this in the absence of Eskom.?
Eskom Management countersigned only on 14 January 2011, at Eskom Headquarters in the absence of Castle Terminal.? A copy of the said final construction contract is attached hereto as Annexure “E”.? Like in the preliminary agreement, the final construction contract provides that the period of the contract is from the 3rd of January 2011 to 15 February 2011.
Request for Extension for the Completion of the Required Services/ Weekly Project Meeting held on 14 January 2011
It was an implied condition of the agreement with Eskom that the preferred service providers will hold weekly safety and quality control meetings (hereinafter referred to as Weekly Project Meetings).?
Thus, for the duration of the tender, the progress meetings have to be held on a weekly basis, whereat safety and quality control matters relating to the project and other matters incidental thereto are to be discussed.?
Quality control matters include matters such as the national standards, the type of material to be used, and compliance of the project with project timelines.? The first of such meeting was held at Witbank, Mpumalanga Province, on the 14 January 2011.? Castle Terminal Co and Aurecon and Bidvest Electrical (Voltex) attended the said Weekly Project Meeting.
It was in this meeting that Castle Terminal Co was favoured with an opportunity to raise the suspicion that it may well be that the specifications written in Aurecon and Bidvest Electrical (Voltex) brand codes and contained in the pre-tender audit report and Bill of Quantities and Tender GEN 3135 were meant to be strictly peremptory.
See copy of Grootvlei Tender GEN3135 document specified in Aurecon and Bidvest Electrical (Voltex Lighting) brand codes:
As the opportunity presented itself, it became abiding to seek clarification from Eskom in that properly constituted forum.? At the said meeting of the 14 January 2011, Castle Terminal Co sought clarification from the Project Supervisor, Mr. Shanil Singh, whether it could use the proposed material as it had earlier intended, and not the material as indicated in the pre-tender audit report and Tender GEN 3135.?
Mr. Singh dolefully insisted that the only material acceptable is the one contained in the scope and Bill of Quantities.? No other material is to be used, he said.? This implied that the AC/DC Company material which Castle Terminal Co had intended to use could not be used.
It deserves repetition that this intention is well documented in that it was stated in the tender documents that were submitted on 03 December 2010, and tacitly accepted by Eskom without questioning when awarding the tender to Castle Terminal Co.
On the 14 January 2011 It was clear that Mr. Shanil Singh, disregarded the Schedule of Deviation to be completed by the Employer prior to contract award. Castle Terminal Co's contract was signed on the 14 January 2010.
Therefore, deviations were supposed to be completed by the Employer prior to contract award but Eskom tender committee refused to complete Deviation form. Mr. Shanil Singh as the supervisor of the project refused acknowledge the importance of the Deviation form and Mr. Logan Reddy as the project manager refused to acknowledge the importance of the deviation form by enforcing that it must be completed by Eskom.
In Contract Number: 4600025920 lately known as Contract Number 4660025920 between Castle Terminal Co (Pty) Ltd: Registration Number 2008/027442/07 and Eskom Holdings Limited Registration Number 2002/015527/06
See the attached deviation form below:
The insistence of the Project Supervisor, Mr. Singh, that the only material to be used is the one contained in the scope and Bill of Quantities, and no other, presented a challenge for Castle Terminal Co because, as it was explained to the Project Supervisor, the tender documents received on 23 November 2010 did not have the pre-tender audit report. ?
Instead, the prescribed material or items were described in the form of Aurecon and Bidvest Electrical (Voltex) quote numbers or brand codes only in tender GEN3135. ?As such Castle Terminal Co was under the impression, not unreasonably so, that it could tender using the proposed material which could give similar or better output than the quoted material in the Bill of Quantities. ?Also supported by a Deviation form in the Contract between Eskom and Castle Terminal Co which was not completed by Eskom.
Castle Terminal Co continued to tender as such.? Its tender succeeded on that basis.? Now the requirement that only Aurecon and Bidvest Electrical (Voltex) material had to be used amounts to change of the goal posts, if not a breach of contract, in the sense that the tender was accepted on the basis that other material, notably the one procured from AC/DC Company will be used. ?Of note is that AC/DC Company is based in Marlboro Johannesburg. ?Its location makes it easier to acquire.
The above explanation, that Castle Terminal Co then prepared tender documents using the pricing of the material similar to the quoted material from AC/DC Company, and not sourced from Aurecon and Bidvest Electrical (Voltex Lighting), was brought to the attention of the Project Supervisor.?
This is evidenced by a letter attached to the said tender GEN3135 documents that the material to be used when providing the requested services will be sourced-in by Castle Terminal Co from AC/DC Company.?
The letter informing Eskom that Castle Terminal Co will tender on the basis that it Supply AC/DC material was attached to Tender GEN 3135 document and when submitted on 03 December 2010. Its tender succeeded on that basis.
Castle Terminal Co attached the letter in respect of Eskom Holdings Limited Supply Contract. Core Clause:
Read Communication clause: 13, 13.1 and 13.2 below:
That Castle Terminal suspected for the first time that it may be the requirement that Aurecon and Bidvest Electrical (Voltex’ Lighting) specified material should be used as quoted during or about 3-5 January 2011 when Castle Terminal Co conducted its own audit at the two Power Stations known as Grootvlei and Arnot was also brought to his attention.
Dilemma Faced by Castle Terminal Co with the Peremptory Use of Aurecon and Bidvest Electrical (Voltex) brand code Material:
As the pricing of Castle Terminal Co in tender GEN3135 documents was informed by the understanding that the material would be sourced from AC/DC Company, it follows that it will be difficult for Castle Terminal Co to discharge its duties in compliance with the final construction contract owing to the fact that Aurecon and Bidvest Electrical (Voltex Lighting) brand code material is excessively expensive as compared to the material sourced from AC/DC Company.
Accordingly, Castle Terminal Co will make a loss as its overheads will outstrip the projected income.?This is compounded by the fact that Eskom demanded a huge discount which regrettably was not based on any calculation.? Regardless, the discount was granted.?
The insistence that the material to be used should be that of Aurecon and Bidvest Electrical (Voltex Lighting) therefore has serious financial implications for Castle Terminal Co. ?Furthermore, the insistence on the use of Aurecon and Bidvest Electrical (Voltex Lighting) brand code material would cause Castle Terminal Co to be in default in terms of the time lines for the completion of the tender project.
It was explained that Castle Terminal Co vigorously and painstakingly searched for the alternative supplier.? The search yielded that the prescribed material can only be sourced overseas, notably in Asia.?
The implication is that the said prescribed material has of necessity to be imported.? In turn, the importation further implies that the deadline of the 15 February 2011 cannot be met.? This necessitated an extension.? Hence, the Castle Terminal Co requested Eskom for an extension.
The other consideration which militates in favour of Castle Terminal Co is that when the firms reopened in January 2011, it became apparent that the items prescribed by Aurecon and Bidvest Electrical (Voltex Lighting) in the pre-tender audit report were not readily available on the shelves in South Africa, including also at Aurecon and Bidvest Electrical (Voltex Lighting) warehouse.?
This was despite the fact that the prescribed material could only be obtained from Aurecon and Bidvest Electrical (Voltex Lighting).? On 19 January 2011, as described elsewhere hereunder, Castle Terminal Co made an attempt to source the prescribed material from Aurecon and Bidvest Electrical (Voltex Lighting).?
This attempt drew blank as Aurecon and Bidvest Electrical (Voltex Lighting) indicated that it does not have the said material.?Castle Terminal Co is not in a position to confirm whether this was mere coincidence or deliberate effort to frustrate Castle Terminal Co as Aurecon and Bidvest Electrical (Voltex Lighting) was also awarded the same tender project.? Examples of the electrical material which could not be found at Aurecon and Bidvest Electrical (Voltex Lighting) are brand code numbered M95-254ELB.
It was in the light of the aforesaid that Castle Terminal Co requested that the completion date of the tender project in respect of its bid, be extended from the 15 February 2011 to 17 April 2011.
The other considerations that militate in favour of the extension are the following:
Notwithstanding the compelling reasons advanced in motivation thereof, Mr Singh, on behalf of the Eskom, indicated that the Minister of Public Enterprise, the Honourable Mr. M Gigaba (MP) issued an injunction that the project has to be completed as per contractual stipulations.
The meeting was adjourned without any agreement on the request for extension of timelines by Castle Terminal.? Castle Terminal’s request for extension was recorded and reiterated in the correspondence dated 17 January 2011.
Meeting Held on 17 January 2011:
At the request of the Eskom, a meeting was arranged with Castle Terminal Co for the 17 January 2011 which was ultimately held at Eskom College LDC in Midrand. Castle Terminal duly attended the said meeting.?
Ostensibly, owing to unavailability of space, the arranged meeting was held in the reception area.? Though this might spell disdain for others, Castle Terminal Co bore no grudges.? Eskom was represented by Mr. L Reddy and Shanil Singh.? Suffice it to state that Mr. Logan Reddy reiterated the instruction of the Minister of Public Enterprise that the project has to be completed by 15 February 2011.?
Accordingly, it was hinted that the extension cannot be granted, regardless of the valid and compelling reasons advanced in motivation thereof and as detailed above.
Of significance is that Eskom’s representatives insisted that Castle Terminal Co should cancel the agreement in writing, the insistence which was expectedly not acceded to.? In response Eskom was requested to put its stance in writing.?
It was agreed that Eskom will revert to Castle Terminal Co regarding its position on the matter.? This was not done until on 28 January 2011, when Castle Terminal received a letter which prompted this response.? The meeting held on 17 January 2011 was recorded in the correspondence dated 17 January 2011 for which, like the previous ones, no reply was received.
Further Attempts by Castle Terminal Co to Source Material from Aurecon and Bidvest Electrical (Voltex Lighting):
After the meeting of the 17 January 2011, it occurred to Castle Terminal that Eskom was hell bent on ensuring that it is unable to deliver on its contracted obligations.? In an attempt to ensure that the contracted services are delivered within the specified timelines, Castle Terminal Co once again sent its emissary to Voltex on 19 January 2011 to establish if material which earlier was said to be unavailable might have been ordered.?
The emissary reported that the bulk of the material is not available.? It was also reported that some of the material which was available was, not even signed to be on the market and consequently the material was not authorised to be used in South Africa.
Meeting Held on 20 January 2011:
Castle Terminal Co was telephonically invited to another meeting scheduled for 20 January 2011 to discuss the matter further.? Castle Terminal Co honoured the invitation.? The meeting was held at Megawatt Park chaired by Mr. T Sibanyoni.?
Notable in his opening remarks, the Chairperson remarked that all the issues raised in the previous similar meetings would not be entertained as those meetings were regarded as informal.? This beggars logic in the sense that the issues that were bound for discussion emanated from the previous meetings.
The Chairperson pointedly indicated that the Castle Terminal Co was in breach of the agreement with Eskom in seeking the extension.? As indicated above, the request for extension and the reasons thereof emanates from the previous meetings that were not supposed to be entertained owing to their informality.?
That this is an allegorical indictment against logic, let alone the spirit of cooperation, deserves no rendition for now. ?Suffice it to note that the Chairperson made it clear in no uncertain terms that the request for extension which arose in the previous meetings cannot be accommodated.? The primary reason cited is that the Castle Terminal Co had ample opportunity to raise its difficulty.
While Castle Terminal Co matter was so simple Eskom Tender Committee and Procurement was supposed to Complete Deviation Form in the contract and permit Castle Terminal Co to supply and Install energy efficiency lighting as required by the contact.
On behalf of the Castle Terminal Co, it was contended, that the request does not amount to the breach.? Instead, it is well within the bounds of the agreement which provides that “any extension, concession, waiver or relaxation of any action stated in this contract by the Parties … does not constitute a waiver of rights”.?
Castle Terminal Co has been advised that the proper interpretation of the final construction contract is that the extension was foreseeable and as such could not be unreasonably withheld, especially when there are valid reasons as there are in this instant case.? Again, the considerations of fairness weigh in favour of Castle Terminal Co under the circumstances.
It is worthy to emphasise that if the agreement is cancelled as demanded by Eskom, the only service provider which can render the services is Aurecon and Bidvest Electrical (Voltex Lighting) which, as indicated, has the monopoly of the coded material in South Africa.?
If Aurecon and Bidvest Electrical (Voltex Lighting) is bona fide that it does not have the stock, it follows that it also cannot render the services.? In turn, Eskom will not have an option but to accede to the request for extension by either Castle Terminal Co or Aurecon and Bidvest Electrical (Voltex Lighting), the Minister’s dictation notwithstanding.?
Therefore, the refusal to grant extension of timelines to Castle Terminal Co implies that the extension will be granted later to another service provider which will be engaged to replace Castle Terminal Co.? It does not require the intelligence of the rocket scientist to ferret that the likely replacement company will be Aurecon and Bidvest Electrical (Voltex Lighting).
Indeed, the likely replacement was Aurecon and Bidvest Electrical (Voltex Lighting). See invitation letter to Bidvest Electrical (Voltex Lighting) below:
Resources of Castle Terminal Co:
It is brought to your attention that Castle Terminal Co is in the position to render the services for which it was contracted for.? Of note is that the tender project is labour intensive.? This warrants the need to employ a large number of qualified personnel so that its finalisation should be within the requested timeline.?
In this regard, Castle Terminal Co has assembled a sizable contingent of skilled personnel.? As Eskom is well aware some of the employees were presented to Eskom for medical check-up and induction during January 2011.? They are in the meantime accommodated at Grootvlei, ready to discharge Castle Terminal’s responsibilities in accordance with the project work.?
They were offered employment by Castle Terminal Co, in anticipation that this project will proceed as expected.? Some resigned from their previous jobs and other employment opportunities elsewhere to work for Castle Terminal.?
The implication of all these was that Castle Terminal Co was currently being billed for the employment's costs, including the salary bill of the said assembled personnel.?
Another consideration which had to be taken into account in this matter was that Castle Terminal Co made efforts to engage the services of students from various technical colleges in Gauteng and Mpumalanga Provinces to practical and experiential training for them as required by their curricula for the completion of their National Technical Certificate.
This was part of the Castle Terminal Co‘s social responsibility obligation. ?One such Technical College, to wit Alexander Technical College, had released 40 students for the purpose of the practical training.? The principal of the said Alexander Technical College Mr. Taumang issued a written confirmation that his institution had released students for temporary employment (or experiential training) by Castle Terminal Co in the first semester of 2011.?
It was anticipated that these students who chose to take the opportunity of practical training thereby forsaking theoretical training in the first semester of 2011 will be working on this project.? As at the moment when the project had stalled owing to the issues at hand, these students were idling and they were without work at great costs of the loss of time in respect of their theoretical studies from which they have been taken by Castle Terminal Co, and also pecuniary costs calculated in the form of salaries and accommodation.?
This served only to heighten the damages being incurred by Castle Terminal if the project was stalled, and worst if it was cancelled.
Castle Terminal Co successfully approached Standard Bank to provide capital finance. ?This served to confirm that, as regards to finances, Castle Terminal Co was ready to proceed with no foreseeable impediments to discharge its responsibilities in accordance with the agreement.?
Castle Terminal was thus ready, willing and able in respect of the finances and human resources (labour) to discharge its obligation in respect of this tender project. The problems alluded to above were the only one holding the progression of the work.
With regard to Safety, Health and Environmental management systems, kindly be informed that appointment of Safety and Health Manager, in compliance with applicable Safety and Health laws had been done. ?The notification of construction work had been signed and approved by the Department of Labour for both Grootvlei and Arnot Power Stations.
Any attempt or insinuation by Eskom that Castle Terminal Co was unable to deliver on its contracted responsibilities in respect of issues raised in the above Paragraph hereof, was devoid of the truth.
Regulatory Framework:
It was noted that Section 217 of the Constitution of the Republic of South Africa, Act 108 of 1996 provides that:
?“(1)????????? When an organ of state in the national, provincial or any other institution identified in the national legislation contracts for goods or services, it must do so in the accordance with the system which is fair, equitable, transparent, competitive and cost effective”
Reference was also made to, Section 3 (1) of Public Finance Management Act 1 of 1999 (hereinafter referred to as PFMA) read with Schedule 2 thereto which provides that the latter Act is applicable to Eskom.? Your attention is also drawn to Paragraph 16 of the National Treasury Regulations dealing with Supply Chain Management and issued during March 2005 in terms of Section 76 of the PFMA above.?
Our interpretation of the above-quoted legal framework is that Eskom is bound by the provision of Section 217(1) of the Constitution which state that Eskom as an organ of State must when contracting for goods or services do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.? The contrary is true in the matter seizing our attention in this regard.
Treasury Regulation: PFMA: 16A6 Procurement of goods and services:
16A6.1 Procurement of goods and services, either by way quotations or through a bidding Process, must be within the threshold values as determine by the National Treasury.
16A6.2 A supply chain management system must, in the case of procurement through a bidding process, provide for:
a. the adjudication of bids through a bid adjudication committee.
b. the establishment, composition and function of bid specification. Evaluation and adjudication committee.
c. the selection of bid adjudication committee member.
d. bidding procedure; and
e. the approval of bid evaluation and / or adjudication committee recommendations’
Comments:
The factual scenario outlined above drives one to a reasonable conclusion, namely that the agreement was initially tailored for Aurecon and Bidvest Electrical (Voltex Lighting).? The engagement of Castle Terminal Co was only a smokescreen from the inception.? At the expense of repetition, this conclusion can be vividly illustrated thus:
Aurecon and Bidvest Electrical (Voltex Lighting) conducted the pre- tender audit and made the recommendations to install the electrical material which is solely provided by Aurecon and Bidvest Electrical (Voltex Lighting).?
Moreover, it authored the scope for the Bill of Quantities in which the material that are specifically coded with Aurecon and Bidvest Electrical (Voltex Lighting) codes are prescribed and Eskom brook no deviation therefrom.? When the tender went out, Aurecon and Bidvest Electrical (Voltex Lighting) expectedly tendered, and was awarded the bulk of the tender.
Also as expected, Castle Terminal Co could not procure the Aurecon and Bidvest Electrical (Voltex Lighting) brand code electrical material in time as Aurecon and Bidvest Electrical (Voltex Lighting) was not in a position to supply same to the Castle Terminal Co. ?The stringent deadline issued during festive seasons when the procurement of material is almost impossible also conspired in favour of the scheme.? To cap it all, the Minister’s alleged dictation was bandied around to fit in and advance the scheme.
It should also be noted that the services tendered for can be rendered effectively by employing material other than the one prescribed by Aurecon and Bidvest Electrical (Voltex Lighting).?
Because it was made abundantly clear that the material with Aurecon and Bidvest Electrical (Voltex Lighting) brand codes had to be used in rendering the services and that Aurecon and Bidvest Electrical (Voltex Lighting) enjoys the monopoly of these brand codes in South Africa and could not supply same to Castle Terminal Co, it was impossible to discharge the services within the agreed time period.
It was clearly evident that in the event that Castle Terminal Co was not granted the requested extension, Aurecon and Bidvest Electrical (Voltex Lighting) was to be awarded the remaining work.? This smacks a collusion which serves as barrier on the part of Eskom, a public entity which was supposed to be striving for fairness and upholding the BEE principles, to do business with other entities, Castle Terminal Co.? In the end it makes mockery of the government principles to advance BEE initiatives.? It further borders on unethical behaviour, if not illegality.
Castle Terminal Co obtained an advice in terms of which it is clear that it has winnable and prima facie case.? Castle Terminal Co had also been advised that the approach of the Courts in matters such as these is that facts set out by the complaining entity, together with any facts set out by entity complained of, established with regard to the inherent probabilities whether the tendering enterprise should, in the light of those facts be granted the relief being sought.?
The facts above clearly illustrate that the tender project in question was conducted in a very contravention of the spirit of competitiveness to the extent that Castle Terminal Co was concerned and in contravention of the principles enunciated in Section 217 of the Constitution.
The relevant section of the Constitution was honoured more in the breach regarding the five tenet and precepts of procurement in organs of state.? The specifications in the tender document were in contravention of the entrenched rule of procurement which provides that they must be described in terms of performance required rather than descriptive characteristics for design.?
Specifications should not create trade barriers in contract requirements in the form of specifications, plans, drawings, designs, testing and test methods, packaging, marking or labeling or conformity certification.?
Rules of procurement provides that specifications may not make reference to any particular trademark, brand codes, specific origin or producer unless there is no other sufficiently precise or intelligible way of describing the characteristics of the work, in which case such reference must be accompanied by the word's “equivalent”.?
Suitable and unbiased specification reference should be compiled for the particular requirement with proper terms of reference which should not be company names or brands.? In this instance Eskom “murdered” competition by insisting on a particular material branded by a particular company brand code.
Procurement practice provides that provisions relating to drafting of specifications should generally ensure fair treatment of bidders and competition that is sufficiently wide.? Slanted specifications would clearly defeat fairness, transparency and competition and the use of trade names or brand code may unnecessarily limit competition. It is important to guard against bias and any appearance of bias in the bidding process.
Bidders are required to declare any conflict of interest they may have in the transaction, for which the bid is submitted, and to declare whether they or certain persons linked to them are or have been in the service of the organ of state serving the same purpose.? In this instance.? Bid documentation must require bidders to declare any conflict of interest they may have in the transaction for which the bid is submitted.
Castle Terminal Co opinion was that the alleged injunction by the Minister that the project be finalised in February 2011, was only a feeble attempt by Eskom to have the unspent budget spent within the financial year.? Such a feeble attempt is termed “physical dumping” in financial parlance.
Proposed Solution to the Impasse:
In the light of the above, Castle Terminal Co urgently called upon Eskom to reconsider its position on this matter.? Such reconsideration should have entailed the flexibility in terms of time limits and/or the material that should be used to achieve its purpose without derogating from efficiency.?
This was to avoid unnecessary delays that may be compounded by possible legal actions.? Surely, this was not ideal as it only put the spanner in the works with the resultant suffering by not only the parties, but by other stakeholders, such as employees and some of which left their studies for the purposes attaining experiential training.?
.
IT Engineer, in the bush
3 个月Urgent Help Needed: 4 Weeks Without Power Due to Meter Issue I’ve been without power for 4 weeks due to an unresolved issue with my Eskom meter, despite numerous attempts to resolve it. Here’s a summary of what I’ve done so far: Call Center: Dozens of calls with dropped lines; one complete call resulted in a KRN2 update, but I still can’t buy tokens. Chatbot: Keeps saying my meter is unregistered, even after multiple updates. Email Support: Responses are generic and don’t address the issue. Walk-In Centers: Long waits and reassurances, but the problem persists. Technician Visit: Confirmed it’s a backend database issue (incorrect SCC number) that requires escalation. Eskom support channels are not resolving the issue, and I’m stuck without power. If anyone has contacts at Eskom or can help escalate this, please reach out.