The Makhanda High Court has dismissed an application to stop the construction of a desalination plant in Port Alfred, pending further litigation about the way the tender was awarded. 

Judge Nomathamsanqa Beshe stated in her judgement that the interests of the community served by the Ndlambe Municipality should be placed first. 

The region is in the midst of a two-year drought that, despite some rainfall, has not broken yet. Earlier in 2020, the Ndlambe Municipality received R20-million from the Eastern Cape government for a desalination plant — the national Department for Water Affairs added another R80-million. 

The original tender was for a 2-million-litre a day desalination plant on the banks of the Kowie River, but this was later changed to a 5-million-litre a day plant. 

According to papers before court, water rationing has already been implemented and water is being transported to residents at a high cost from nearby Cannon Rocks. This water isn’t used to flush toilets and as a result, a health risk has developed in the area and there have been a number of protests. 

One of the losing bidders for the tender, MEB Energy Pty Ltd, asked the court to halt the project pending an application to review the municipality’s decision to award the tender to Quality Filtration Systems Pty Ltd. 

The project, that would supply 5 million litres of water to the municipality,  was temporarily halted in March 2020 pending a return date. 

MEB claimed that the tender process was “fraught with irregularities”, Beshe said in her ruling. 

The case took a bizarre twist when MEB claimed that two men offered to ensure that the contract will be awarded to them in exchange for a R1-million bribe. The Ndlambe municipality’s acting municipal manager Mlungisi Michael Klaas said they did not know the two men referred to by MEC officials. Beshe also ruled that there was no evidence to show the effect that this event had on the outcome of the tender process. 

In her ruling, Beshe said there was a severe scarcity of water in the Ndlambe Municipality and the need to find water was an emergency. She said the application to deviate from normal procurement processes because of this was in place. 

Beshe added that emergency funding was accessed by the municipality after the tender had gone out in its original format, but both companies were requested to make further proposals to enlarge the plant and, as a result, none were treated unfairly. 

She further explained that as there was a deviation from the normal supply chain management process, it was not necessary to issue a fresh tender with the changed specifications as there is an urgent need to provide water to the community. 

“There can be no doubt that there is a pressing need for the water crisis to be dealt with.” She said in this instance the balance of convenience favours the municipality “on whose shoulders the responsibility to provide the community with clean water lies”. 

“I am also of the view that the interest of the community… will be best served by the project being carried out as soon as possible,” she said. 

MEB claimed there were a number of irregularities in the tender process, but the municipality said the tender by MEB was out of their price range. QFS’ tender was R90-million lower than that of MEB. 

The municipality stated in papers before court that it only had R100-million at its disposal, and secured this money from two grants from the Department of Cooperative Governance and Traditional Affairs, and the Department of Water Affairs. DM/MC