Minister Retšelisitsoe Matlanyane challenges award of NMDS tender to SA company ©Picture supplied

Relebohile Khutlang

Minister of Finance and Development Planning, Retšelisitsoe Matlanyane has weighed in on a dubious government contract asking the High Court to set it aside. The minister’s critics are questioning her motives and many questions remain unanswered. 

The country’s anti-corruption agency has yet to conclude its investigation into the tender process and award. Still, Matlanyane is sticking to her guns and has asked the court to overturn the tender award.

The tender documents do not disclose what the government debt collection contract is worth. However, a source close to the tender processes told the MNN Centre for Investigative Journalism that it is worth about M1-million a month (20% commission on debt collected, estimated at M5-million a month).

The company that secured this contract is Cabana Zenowethu, a joint venture between South Africa’s Zenowethu Debt Management and Lesotho’s Cabana Solutions. This company secured the lucrative debt collection tender in May 2022 after it struck a deal with its competitor in the bid, Lesotho company Super Solutions. In return for   M13-million Super Solutions agreed to withdrawing from the bid and drop its court action aimed at exposing irregularities in the Cabana Zenowethu bid. At the time, Super Solutions was objecting to the same irregularities now being raised by Minister Matlanyane. This is why the winning bidder, Cabana Zenowethu is questioning Matlanyane’s motives asking why she did not raise these objections at the time. 

In March this year, MNN reported that Super Solutions agreed to withdraw their lawsuit and remain silent regarding the irregularities in the awarding of this tender in exchange for M13 million and a monthly retainer fee of M92,592.59 from Zenowethu.  At the time, MNN also revealed how the High Court made this deal and order of court and how the Directorate on Corruption and Economic Offences smelt a rat and went ahead and opened an investigation into the tender process and award.  On March 22, 2023, the anti-corruption agency’s director-general Knorx Molelle notified  Matlanyane of this investigation and  “strongly recommended” that she not proceed with the signing of the contract and execution until the investigation has been completed. The agency has confirmed to MNN that it has not yet completed the probe. 

In her founding affidavit, Matlanyane requests the court to review and set aside the decision of the Procurement Unit to award the National Manpower Development Secretariat (NMDS) debt collection tender to Cabana Zenowethu and declare it as illegal and of no force and effect in law.

“I verily believe, humbly submit, and will demonstrate below that the award of the tender to Cabana Zenowethu inclusive of the internal process of Ministry of Development  Planning was and still is, fraught with irregularities, procedurally and substantively, and consequently non-compliant and therefore, unlawful and bound to be reviewed and set aside,” Matlanyane charges in her affidavit.

In a responding affidavit, Lebohang Kompi, the managing director of Cabana Zenowetho said even if the court were to find in these instances that there was an irregularity as alluded to by Matlanyane, the court would still need to find “an equitable remedy to be granted in these proceedings”.

Kompi argues that,  because Matlanyane is not alleging that Zenowethu was deliberately breaching the procurement regulations and because her ministry could not reach this conclusion without external review, the court should be considerate or lenient even if rules have been breached.

Matlanyane is arguing that Cabana and Zenowethu failed to attach the joint venture’s valid trading license when they submitted their bid. Instead, she says they submitted individual trading licenses of the two companies that constitute the joint venture. She adds that the trading license and the tax clearance certificate of the joint venture were only submitted after the award of the tender. 

Not only that, Matlanyane further says the bank performance guarantee of both companies constituting the joint venture is contrary to regulation 41(3) of the Public Procurement Regulations [of 2007]. This regulation requires bidders to “provide evidence in their tender that such a guarantee will be provided.” However, she says the joint venture only submitted a bank confirmation and audited reports of Cabana Solutions but did not submit those of its own or those of Zenowethu as the second partner in the venture. 

Kompi on the other hand questions Matlanyane’s motives. Referring to a January 26 2023 notice of intention to oppose the Super Solution’s case, which was submitted by Advocate Mafefooane Moshoeshoe for the attorney general’s office on behalf of all government departments involved in awarding this tender, Kompi argues that Matlanyane had not only remained silent when Super Solutions raised similar objections to the ones she is now raising, but she defended the tender award to Cabana Zenowethu.  

Kompi further claims that the evaluation team’s minutes show that their joint venture submitted all the relevant licenses. Kompi did not provide these minutes to back up what he was saying. In cases where the documents were submitted after the contract was awarded, Kompi says it was because the documents that formed part of the bid, such as bid licenses and tax clearance, had expired since they were only valid for a year.

But Matlanyane is not taking it. She insists that the tender was awarded inappropriately and before the evaluation team could give it a greenlight.

In their defence, Kompi says if the ministry under Matlanyane noticed any irregularities two years ago when Super Solutions presented their case in court citing the same irregularities, it should have objected within a reasonable time.  Instead, he says they only submitted the review application last year after the tender was awarded to Cabana and therefore found her to be “strange and abusing the court processes.”

“By filing the said Notice of Intention to oppose the review application [by Super Solutions], the applicants had taken a position to defend the award of the tender… From their application, it does not come out clear what influenced them to adopt a different position, and why now not then?” Kompi asked.

The case continues in court.