Court rules that Ndlambe can go ahead with R100m desalination plant

Ndlambe municipality has the green light to proceed with the R100m construction of a desalination plant in the drought-stricken area after the Grahamstown High Court this week discharged an interim interdict preventing the project from going ahead.

The losing bidder for the project, Durban-based MEB Energy, in March obtained an urgent interim interdict to stop the municipality from proceeding with the project because it claimed in court papers that the tender was irregularly awarded to its competitor, Cape Town-based Quality Filtration Systems (QFS).

MEB claimed in court papers that:

• MEB’s proposal was faithful to the specs of the tender whereas QFS’s omitted to quote for some items — meaning its tender was obviously cheaper but also ineligible;
• Neither QFS nor MEB met a functional threshold and, in fact, both tenders were therefore ineligible; and
• According to the bid opening register, QFS had bid R40m. However, this had increased to R111m meaning the price had changed since bid submission. The documentation had shown the municipality had allowed QFS to add “additional functionality” not in its original bid after bids had closed. This stripped the process of fairness.

But the municipality fought tooth and nail to get the project back on track and argued strongly in mid-March against the interim interdict being made final pending an application by MEB to have the decision reviewed and set aside.

The municipality argued that the construction of a desalination plant in the area was so urgent that it had warranted various deviations to the tender. Both bidders had been given an equal opportunity to amend their bids in terms of the deviations.

Judge Thamie Beshe found that the scarcity of water in the region was indeed an emergency and that a deviation to the tender provided a speedier solution than starting the entire process over.

“There can be no doubt that there is a pressing need for the water crisis to be dealt with and that the provision of water is an essential service to any community.”

She found the balance of convenience favoured the municipality “on whose shoulders the responsibility to provide the community with clean water lies”.

She also ruled that the public interest and not just the interest of the bidders and the municipality had to play a role.

“I am of the view that the interest of the community that is served by the first respondent will be best served by the project being carried out as soon as possible.”

Ndlambe municipality’s lawyer Brin Brody on Wednesday confirmed that the municipality would now proceed with the desalination plant to the benefit of the thousands of citizens in need of water in the region.