The Pietermaritzburg High Court on Friday ruled in favour of a service provider, Nombela Investments, of Ezemvelo KZN Wildlife and ordered the State entity to cover all legal costs.
Nombela filed an appeal against the decision by Judge N Radebe in December 2022, after Ezemvelo had brought a legality review against its own decision to award Nombela a tender in 2017. Ezemvelo took this decision on September 16, 2021.
On January 24, 2025, this appeal was heard in this court before acting Judge Sibisi, Judge President Thoba Poyo-Dlwati, and Judge Robin Mossop SC.
On September 8, 2017, Ezemvelo advertised a tender for the supply and delivery of liquid petroleum gas and the installation of related connections to the Ezemvelo resorts for five years.
The advertisement specified that the entity would conduct a compulsory clarification session on September 22, 2017, at 11. Failure to attend and sign the compulsory briefing register would result in bid disqualification.
Nombela, which had submitted its bid, failed to attend the compulsory clarification session. However, Ezemvelo awarded it the tender, despite the entity’s acting supply chain manager, Mr Mnembe, knowing this. Mnembe was also a member of the Ezemvelo bid adjudication committee.
The tender was alleged to have a fixed value of more than R21 million (a fact in dispute), and within two years, payments of more than R17 million had already been made to Nombela.
In administering the service agreement, Mnembe allegedly authorised payments for fictional transactions claimed by the company.
Nombela provided the services to Ezemvelo for years. In October 2019, Ezemvelo commenced an internal audit and forensic investigation of the circumstances relating to the awarding of the tender to Nombela and the conclusion of the service agreement.
On February 6, 2020, before the internal audit was completed and the report filed, Ezemvelo terminated its service agreement with Nombela. The termination was because gas cylinders were positioned in inappropriate places by Nombela.
There was no training of Ezemvelo staff, and as a result, certain incidents had occurred at various resorts that resulted in injuries to the staff and damage to Ezemvelo’s infrastructure.
Moreover, the basis of the cancellation of the service agreement at the time had nothing to do with the awarding of this tender. It related to events that occurred after the tender had already been awarded.
Nombela denied that there was any basis for Ezemvelo to cancel the service agreement. However, it changed its mind and accepted the decision of Ezemvelo to let it go.
On March 19, 2020, Nombela quickly filed a legal claim against Ezemvelo, asking for money because it lost profits due to the remaining time left on the service agreement. A meeting to discuss this took place on August 16, 2021.
“The failure to address the issue of delay at all by the court a quo in its judgment appears to me to be an unfortunate, but obvious, misdirection by it. The issue was before the court and should have enjoyed the court’s consideration,” Judge Mossop said.
He further said a public body seeking to review its own decision is duty-bound to explain delays in making that request, even if there are grounds to do so, which he said, were not present in this particular case. He said if there were none, the decision could not be reviewed and it could be set aside by delay.
“The appeal is allowed, and the order granted by Judge Radebe in December 2022 is set aside and replaced with the following order: The application is dismissed with costs,” he said.
