The Port Elizabeth High Court has ruled in favour of Metro Security Services and has ordered the Nelson Mandela Bay municipality to hand over an internal audit report that was compiled in relation to security tender 45/5, which clearly states that the company should have been awarded the tender.
Metro Security Services were initially awarded the security tender – valued in excess of R90 million over three years, on the 5th of January last year, but the municipality withdrew the awarding of the tender a few days later, saying it had been prematurely awarded as the municipal manager had not signed off on the contract.
Despite numerous unsuccessful negotiations to have the matter resolved and the tender finalised, Metro Security Services were finally forced to seek legal recourse on the matter in May 2010, and have been locked in an ongoing legal battle with the municipality to gain clarity over why the tender was withdrawn and to have the issue finalised ever since.
The latest legal dispute revolves around an internal audit and corresponding in-house legal opinion that was compiled on behalf of the municipality to establish the validity of allegations around irregularities, the actual awarding of the tender and whether due process had been followed in terms of the municipality’s Supply Chain Management Processes. The municipality refused to hand over the documents, claiming that they were protected by legal professional privilege due to the legal advice they contained.
In a High Court appearance on Friday 25 November 2011, Metro Security Services advocate, Richard Quinn SC, argued that the documents were in fact not entitled to privilege, and that they should be released to Metro Security Services.
In his judgement on the matter, handed down earlier on Tuesday 29 November 2011, acting judge, Albert Beyleveld, found in favour of Metro Security Services and ruled that the municipality had ten days in which to make the documents, including all annexures, available to Metro Security Services.
“I am of the view that even if the person who furnished the legal advice is an admitted practitioner or even if privilege extends to persons who are legally qualified, but not admitted practitioners, (Metro Security Services) would be entitled to the documents,” said Beyleveld.
Beyleveld said the municipality was bound by constitutional and legislative precincts to conduct its procurement processes in a fair, open and transparent manner, while ensuring that they acted fairly, impartially and independently.
Beyleveld said this meant that when allegations were made that the State had acted improperly, the public had the right to scrutinise the procedures used by the organ of state, to ensure public confidence in the procurement procedures. He said, in line with this, the internal audit had in fact been commissioned to investigate allegations of “malpractice and unlawful conduct.”
Beyleveld also ruled that the municipality was to pay Metro Security Services legal costs, including that of two counsel.
Metro Security Services director, Kaashief Niekerk said he was glad that the matter had been resolved and that the High Court had ruled that they could receive the internal audit report.
“It has been a very lengthy process, but, now that this matter has been finalised, we can now proceed with the main court application relating to the tender itself,” he said.
Niekerk said Metro Security Services would be returning to the Port Elizabeth High Court early in the new year to argue that, based on all the documentation they now had in their possession, they were in fact the preferred bidder, and by rights should have been awarded the tender and would be asking the court to make a ruling on the matter.
Editor’s Notes: See the comments below for the reason why I have included the video of Rammstein’s ‘Du Riescht So Gut’.
Alan Straton
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Rate-payers being reamed again!
I cannot get this image out of my mind – the NMB Municipality, played by Rammstein’s, Till Lindemann, drawing the NMB Ratepayer’s and their slowly emptying pockets closer, whilst singing; “Du Riechst So Gut”. It would make a classic cartoon.