The North West High Court, sitting in Mahikeng, declared the appointment of MIB Infrastructure Development by the former Administrator of the province’s Department of Health to act as a consultant for architectural services for the planning, design, and commissioning of the upgrading of General De La Rey District Hospital was unlawful.

Acting Deputy Judge President Andre Petersen had set aside the tender and ordered that Bagale Consulting’s appointment is legal and enforceable. This is after Bagale turned to court to seek a declaratory order that it is in fact the duly appointed consultant in respect of the construction site known as Lichtenburg Hospital, which includes the existing General De La Rey Hospital situated in Lichtenburg.

Court papers revealed that two different service providers – Bagale and MIB Infrastructure – were appointed for the same project, which led to this legal tussle. In opposing the application, the department argued that the construction of a new hospital differs significantly from that of an existing hospital.

Bagale, in turn, argued that the appointment of MIB to do consulting work in respect of what the department refers to as the upgrading project of General De La Rey Hospital under a different contract number is an encroachment on the construction site allocated to it.

Bagale said this was done under circumstances where its appointment has not been terminated by the department.

Bagale further submitted that the department is seeking to rely on form over substance by asserting that it was appointed under a different contract number to design drawings for a new hospital adjacent to the Lichtenburg Hospital. This, it said, while MIB was appointed under a different contract number for the upgrading of the latter hospital.

The department, however, said that Bagale’s argument that MIB was appointed to a site in respect of which they were already appointed is without merit and legally unsustainable. Bagale contends that MIB has been appointed to work on the same construction site allocated to Bagale, with a view to enhance or increase the bed capacity of the existing hospital to accommodate more patients following the closure of the nearby Thusong Hospital.

Bagale argued that its existing, future, or contingent right to execute its mandate as appointed by the department is being placed at risk by the appointment of MIB, as the latter has been appointed to do work on the very same site allocated to Bagale.

The department, in turn, accused Bagale of wanting to unduly squeeze it for more funds, in addition to the R93 million it had already received. It added that a declarator would not settle the issues between the parties as the scope of the work to be completed in the construction of a new Lichtenburg Hospital is different from the upgrading of the General De La Rey Hospital, which culminated in the appointment of MIB.

Judge Petersen commented that from a procurement perspective, if the department intended to “upgrade” the existing hospital rather than build a new one, this constitutes a change in scope. “The appointment of MIB through a closed quotation process for a project on a site where another consultant (Bagale) already had a mandate for a major hospital development raises serious questions about transparency,” the judge said in ruling in favour of Bagale.

zelda.venter@inl.co.za

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