DURBAN University of Technology (DUT) is set to appeal against a Durban High Court decision that found it to have irregularly awarded a contract to a security company in 2019.
Mzansi Fire and Security had brought an application to the court in 2020, in part to challenge the scoring it was given during the tender process, and subsequent awarding of the contract to Izikhova Security Services. Mzansi had sought for the entire tender process to be set aside.
The security company had also made submissions of fraud against DUT, but later abandoned the claims. Moreover, Mzansi had sought an order for the refund, with interest, of a payment it made to the institution’s Bid Evaluation Committee (BEC) for an appeal. The BEC’s procedural requisite is for appellants to make a non-refundable R200 000 payment to DUT, if the appeal is dismissed. In opposing papers, DUT said there was no basis for the relief sought, and that court should allow for the process to revert to the BEC for adjudication. Further, the university argued that it was not an organ of state.
In the judgment, Judge M Chetty said conceding to DUT’s submissions that it was not an organ of state would mean institutions such as DUT would not be accountable to the state.
“If DUT is correct in its approach, it would mean that a state-funded institution would effectively remain unaccountable to the public or even the minister for the amount of money it expends when contracting for services. It cannot possibly be the situation that an institution like DUT can act without constraint when contracting with private parties for rendering services to the exclusion of Section 217 of the Constitution.
“I am unable to agree with the submissions on behalf of DUT, as to do so would imply that an institution funded by the state and established in terms of statute by the Minister of Higher Education, is essentially a law unto itself, unaccountable to its major benefactor as to how it spends its funding,” Judge Chetty said.
Chetty ruled in favour of Mzansi Fire and Security, in that the BEC’s decision to award the contract to Izikhova Security Services was unconstitutional and thereby set aside.
“The declaration of invalidity is stayed for the period of six months from date hereof so to enable DUT to conduct the procurement process starting within 14 days of the date of this order by advertising a security tender to fulfil its security requirements.
“DUT shall forthwith refund Mzansi Fire and Security, its tender appeal deposit of R200 000, together with interest at the legal rate calculated from December 30, 2019, to date of payment,” Judge Chetty said.
DUT corporate affairs director Alan Khan said the institution could not reveal more details as the matter was still up for litigation.