MAHIKENG – A fierce legal battle over a multi-million rand tender for the removal and disposal of hazardous medical waste in public hospitals and health facilities across the North West province has erupted in the high court in Mahikeng.
The litigation has taken a dramatic new turn after serious allegations regarding the potential forgery of critical banking documents were officially referred for the hearing of oral evidence. This follows an interlocutory application brought by one of the competing companies questioning the validity of the rival bid.
Development of the case
The core of the dispute stems from the decision made by the MEC for Health in the North West to award a lucrative four-year contract to Ultimate Waste (Pty) Ltd. The company Tshenolo Waste (Pty) Ltd, which had previously been involved in providing similar services, approached the court with urgent review applications seeking to set this award aside. Tshenolo contends that the entire procurement process was riddled with severe administrative irregularities and that its own bid was unlawfully and unfairly disqualified.
In response to the review, however, Ultimate Waste launched a counter-application. Ultimate Waste alleges that two pivotal letters ostensibly issued by Absa Bank Limited, one confirming an overdraft facility dated 21 December 2023 and another for asset backing finance dated 18 December 2019, are potentially fraudulent or not authentic. These specific documents were submitted by Tshenolo during the bidding process to prove it possessed the necessary financial capacity and underlying infrastructure to meet the department’s stringent tender requirements.
Cause for referral
In a comprehensive judgment, acting Judge L. Morgan emphasised that the collection, transportation, and destruction of medical bio-hazard waste is not merely an ordinary commercial transaction. It is a critical, high-risk public service upon which the healthcare system, as well as the safety of thousands of patients and medical staff in the province, directly depends.
Due to the exceptionally grave nature of the fraud allegations surrounding the Absa Bank letters, the court ruled that the dispute could not be safely resolved on the affidavits filed on paper.
Consequently, the matter has been referred for oral evidence so that officials from Absa Bank and the relevant corporate parties can be cross-examined to establish the absolute truth regarding the documents.
Immense strain within province
The ongoing legal warfare has created immense administrative and logistical strain within the province. Due to an earlier interim interdict that suspended the implementation of the main contract award, the Department of Health was forced to implement temporary, month-to-month emergency arrangements to ensure that provincial hospitals are not overwhelmed by accumulating medical waste. This interim arrangement is now also being legally challenged by Tshenolo in court.
During the proceedings, the MEC for Health and the MEC for Finance (Treasury) in the North West indicated that they would formally abide by the decision of the court regarding the interlocutory application.
Judge Morgan noted that allegations of fraud or document manipulation threaten the fundamental integrity of the entire public procurement system.
If the court ultimately finds that the documents were forged, it could have catastrophic legal and criminal consequences for Tshenolo. Conversely, if the documents are proven authentic, the court will proceed to determine whether the MEC’s original decision to award the tender to Ultimate Waste was rational, lawful, and fair. The final ruling on the consolidated review application will only be delivered after the oral evidence regarding the financial documents has been fully heard and analysed.
