Cape Town - Secrecy continues to shroud the City of Cape Town’s decision in 2012 to award a R5 million beach cleaning tender to a Port Elizabeth-based firm, and not the company that had a 14-year proven track record of doing the work.
Faced with a deadline to file court papers defending its decision to withhold a potentially damning forensic report in the way the tender process was handled, the city said on Thursday that it would only release the KPMG report if it could censor the names of the officials mentioned.
This edited or “redacted” document can only be used by Beach Clean SA and is not allowed to be distributed to anyone else.
In its responding affidavit, filed on Thursday, the city’s legal team explained that KPMG interviewed officials as part of its probe, and had access to information about the tender process. This information was given with the understanding that it formed part of a confidential investigation.
“If an order were to be granted that the city deliver the full KPMG report to the applicant without any limitations or conditions, city officials would be extremely reticent, in future forensic investigations of this nature, to make a full and frank disclosure of all relevant information to the investigators concerned…,” argued the city’s legal team in their answering affidavit.
It goes on to say that this instruction had come from the executive mayor.
But Werksmans Attorneys, representing Beach Clean SA, said it would only accept the city’s conditions if the report was redacted to protect whistleblowers and not city officials who could be implicated in any wrongdoing. Furthermore, Beach Clean would not make any undertakings regarding the confidentiality of the report. The firm also demanded that the city pay Beach Clean’s costs on a party and party scale, given that the costs in trying to get the report since last year could have been avoided.
“Once again the taxpayer is forking out a lot of money on senseless litigation on the city’s part,” said Rael Gootkin, of Werksmans Attorneys.
The city has offered in its affidavit to settle the application and to pay Beach Clean SA’s costs.
Gootkin said Beach Clean first sought to get a copy of the KPMG report at the end of last year, as it would reveal why the company’s initial bid for the beach cleaning contract was dismissed.
However, the city refused on the grounds that the findings of the probe contained confidential information. The city had confirmed earlier that the report had found that there were indications that some officials may have transgressed the code of conduct in the way the tender was considered and awarded. No councillors were implicated in the report.
Speaker Dirk Smit said in May this year that it would not be in the public interest to release the report.
Beach Clean then brought a further application in terms of the Promotion of Access to Information Act to compel the city to hand over the report. The city filed a notice of opposition, but failed to file its answering affidavits, said Gootkin.
The court then ordered on August 20, 2015 that the city had five days in which to file its opposing affidavit. If not, Beach Clean would be able to approach the court to have the city’s defence “struck out”.
Gootkin said Beach Clean obtained a further cost order against the city – its fourth in recent years.
The high court has already ruled twice in Beach Clean’s favour over the contract. First the court ruled that the Khazimla had access to Beach Clean’s confidential pricing schedule during the tender process, and ruled that the city should set aside its decision and give Beach Clean a chance to submit its information.
The city then cancelled the tender and Beach Clean again sought relief from the court.
Judge Karisha Pillay then ordered the city to award the tender to Beach Clean. However, more than three years after the initial bid was advertised, the budget for the beach cleaning was substantially less. Beach Clean’s Rogerio Viana said this prevented him from meeting his contractual requirements. The city, meanwhile, complained that Beach Clean had failed to comply with the city’s requirements, and after Viana was fined for illegally dumping, the cityterminated the contract.
Various councillors raised the alarm then about the way the tender process was being handled, and Viana said it would be in the public interest to reveal thefindings of the forensic probe.
Viana said: “The city has used all its abilities to compromise our position so that we are not operational.”
He said the KPMG report could have been released without having to resort to any legal action at the cost to ratepayers.
Cape Argus