A SPECIAL tribunal has reserved judgment in the R40 million Beitbridge border fence case where the Special Investigating Unit (SIU) wants payment to the two companies that won the now-contested tender to be withheld.
The tribunal’s Judge Lebohang Modiba said she had a lot to consider and refer to in terms of case law and other previously decided cases.
She said the judgment would be ready either by the end of the year or early next year.
When the hearing started in Johannesburg, the SIU and the Department of Public Works wanted a postponement, saying they intended to call specialist witnesses, but Judge Modiba dismissed their application, setting the entire process in motion.
In the main, the SIU and department want payment to Caledon and ProfTeam to be withheld as the contract was illegally awarded and as such they should not be allowed to benefit from an illegal tender.
The R40 million contract to build the 21km fence between South Africa and Zimbabwe was awarded in March last year, just days into the Covid-19 lockdown.
The fence drew outrage when it emerged that despite the money spent, it started to fall apart within days, allowing the illegal movement of people between Zimbabwe and South Africa.
R21.8 million has already been paid to Caledon River Properties (trading as Magwa Construction) and ProfTeam Construction (Pty) Ltd. The SIU wants the rest of the money not to be paid.
During the hearing on Monday, it emerged that the two companies were paid in advance and the reason given was that due to the hard lockdown at the time, it would take time to sign and pay invoices as staff movement was severely limited.
Advocate Ishmael Semenya SC, representing the SIU and the Department of Public Works, said the contest was whether they could be compensated for an irregular contract.
The enforcement of the invalid contract would breach the principle of illegality.
Firing back, advocate Etienne Theron SC, representing ProfTeam, said his clients had been subjected to character assassination despite delivering on the contract.
He said during the project, a professional engineer was on site daily and updated the Department of Public Works.
Theron said that there had been a full performance of the contract and the department got what it wanted with the money agreed on.
He added that the proper construction of the fence would have cost more than R300 million and his clients had performed according to the specifications.
Advocate Scheepers SC, who represented Caledon, submitted to the tribunal that his client was informed that the invoices be submitted before the time as there would not be anyone to process them during the lockdown.
He stressed that the maintenance of the contract was not part of their scope and it should have been the department that did that.