The legal opinion sought by the broadcaster from MNS Attorneys, a copy of which The Star has seen, states that the appointment of Mafoko Security was not warranted.
“Based on the information made available to us, it is our view that there was no objective criteria as contemplated in section 2(1)(f) of the PPPFA (Preferential Procurement Policy Framework Act) that warranted the appointment of Mafoko as the second-ranking bidder,” the letter states.
The SABC on Monday refused to comment on the reasons for going against the legal opinion.
“This matter is before the courts and is the subject of an ongoing Special Investigating Unit investigation. We do not want to get to the details of this matter until these processes are complete,” spokesperson Kaizer Kganyago said.
Counter-allegations of corruption in the bidding process have been against Mjayeli Security, the losing bidder, and the SABC. Both have denied these allegations.
MNS, The Star understands, was approached by the SABC for its opinion on prospects of success in a potential dispute between itself and Mjayeli.
Mjayeli in December requested the high court in Joburg to set aside Mafoko’s appointment until the SABC provided it with documents relating to its decision on the matter.
MNS director Tshiamo Sedumedi on Monday confirmed that his firm had provided the SABC with a legal opinion on the matter.
The law firm said it had come to the decision after studying the documents relating to the tender. These included the SABC’s supply chain management policy, and extract draft minutes of the meeting of the broadcaster’s group executive committee, among others.
Among the stringent criteria was the Price and BBBEE - “in accordance with the formula set out in the PPPFA”. Forty-five bids were received but only six proceeded to the functionality phase.
Mjayeli outscored Mafoko and Mabotwane Security.
“The crisp issue arising out of this matter relates to the powers of the SABC... to award a tender to a bidder who has not scored the highest points,” the legal opinion states.
Upon analysing evidence and juxtaposing it with the PPPFA, MNS said, it became apparent “that the SABC board will find it difficult to convincingly defend” the Mafoko appointment instead of Mjayeli.
The board had also raised queries regarding the possible miscalculation of functionality points, which could have affected Mafoko’s overall score. MNS argued this point was irrelevant as all three shortlisted firms had reached the threshold 35 points and was not used for price evaluation and BBBEE.
“It was immaterial how many points Mafoko or Mjayeli obtained during the two stages of functionality evaluation, as long as they met the minimum threshold of 35 points (paperbased functionality) and 95 points (site inspection). On this basis, this query cannot be used as a possible basis to justify awarding Mafoko the preferred bidder status, when it was the second-ranking bidder,” MNS said.
Regarding Mjayeli relying on absorbing 75% of Mafoko’s staff at the SABC premises on its TV outside broadcast contract with the broadcaster, MNS said there was nothing untoward with this.
“The fact that Mafoko had a good track record at the SABC cannot be used as an objective criterion as that aspect would have been taken into account during the functionality evaluation.
“We are advised that the absorption of 75% of the incumbent’s staff complement is a security industry practice that is accepted by all the role players in the security industry,” MNS said.
** On Monday, The Star published the story of the tender war, based on court documents. In the story, we reported that SABC board chairperson Bongumusa Makhathini stated that he had received an anonymous letter from a whistle-blower accusing former interim board chairperson Khanyisile Kweyama, board member Mathatha Tsedu and chief security officer Simon Mathebula of impropriety in the awarding of the tender.
We failed to seek comment from Tsedu and Mathebula.
The error is regretted.