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Pretoria - A Pretoria High Court judge has frowned upon the numerous gifts that management group Bosasa has given to Correctional Services officials over the years and said that, in his view, there could be no legitimate reasons for making those gifts.
“This practice should immediately stop,” Judge Ferdi Preller said in a judgment.
It emerged in an application before him that these gifts ranged from Parker pens and braai sets to tickets to sporting events, invitations to suites at sport stadiums and large sums of cash (up to R20 000) for year-end office functions and charitable organisations.
This came to light when Royal Sechaba Ltd, one of the unsuccessful bidders for the multibillion-rand contract to provide, among other things, more than 70 000 meals three times a day to more than 31 prisons, challenged the awarding of the contract by Correctional Services to Bosasa. The contract commenced in 2009.
The applicant felt not all had been above board in the awarding of the contract and asked the court to set it aside.
Its tender had been rejected on the grounds of technicalities and the company feared there had been “deliberate sabotage” involving its bid documents.
Judge Preller could not find anything to substantiate this, but he did at length comment on the applicant’s next contention that the Bosasa bribed officials with gifts to vote in their favour.
The judge said he was old enough to remember the days when owners of grocery stores in small towns at Christmas sent a parcel of their products to regular customers. He said he had no doubt that this practice had started off as a show of appreciation for their business.
If there was another grocery store in town, this token of appreciation would no doubt develop in a competition for customers.
While the line between a token of appreciation and competition for business was thin, there was no ethical problem with this, Judge Preller said.
His second example involved attorneys who presented gifts to magistrate’s court officials.
“Friendly prosecutors, magistrates and staff can certainly make life a lot easier for a busy attorney,” he remarked. The gifts were later seen to be possible corruption and contributions were made towards end-of-the year office functions. But this remained a problem, the judge said, because the bigger the donation the bigger the favour expected.
The difference between the two examples, he said, was that the grocer sacrificed part of his profits, but the staff at the magistrate’s office did not sell their own wares. They had to dispense justice equally, whether they were liked or not.
The judge said in this case Bosasa and Correctional Services tried to justify the giving of gifts. One was that gifts were given to area commissioners and deputy commissioners with whom Bosasa had a “close business relationship”, and at the time of making the gift, the officials were not yet part of the bid evaluation committee.
Judge Preller said this did not alter the fact that the officials who had received gifts were subsequently appointed to the committee.
“The gifts were intended to work as a slow poison that would ensure the loyalty of the officials.”
Judge Preller added that it was not without significance that of the 14 companies that competed for this contract, Bosasa was the only one to have indulged in “this deplorable practice”.
The respondents had vehemently objected to newspaper clippings being handed to court that said corruption in the department was rife and that Bosasa was not exactly “a band of angels”, the judge said.
“I cannot blame any tenderer for feeling more than just uncomfortable having to compete against Bosasa under those circumstances.”
The judge refused the review application, however, saying it was clearly too late to order that the tender process start afresh because by the time the application was heard, the contract had run two thirds of its course. “It is simply too late,” the judge said.
He ordered that the department and Bosasa pay costs due to the “perception of bias, if not actual bias”.