Sanral continues to roll out its project pipeline despite interdicts

The SA National Roads Agency (Sanral) has defended its controversial new procurement scoring system and maintains the interim interdicts obtained by two construction companies preventing the implementation of it on 67 projects will not delay the rollout of its planned project pipeline.

Sanral chair Themba Mhambi also stressed on Wednesday that Sanral will not bear any grudges against the construction companies that have challenged the road agency’s new scoring system.

H&I Construction was granted an interim interdict in the High Court in Gqeberha, stopping Sanral from proceeding with the adjudication and award of two specific tenders in accordance with the amended tender scoring system as advertised by Sanral on 19 May 2023 in an addendum to its tender document.

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Nine construction companies submitted affidavits in support of H&I’s application.

The High Court in Pretoria granted construction and infrastructure company SMEC South Africa an interim interdict stopping Sanral from proceeding with and/or implementing and/or giving effect to the outcome of the tender adjudication process related to a list of 65 bids to tender invitations.

Both interim interdicts were granted pending applications to review and set aside the new scoring system.

‘Tainted’ tenders

Sanral CEO Reginald Demana said the “tainted” tenders affected by these interdicts represent possibly about a third of the about 200 tenders Sanral has in the market.

Demana said these 200 tenders have a value of about R33 billion, of which R11 billion are tainted, and there is still enough work for Sanral to continue to execute work.

Mhambi said it takes between 12 to 18 months from the time Sanral advertises a tender to when it gets people on the ground with hard hats, shovels and wearing boots, which means the current issues with the interdict and the new preferential procurement scoring system is not going to stop Sanral working.

“Our staff members can hardly cope [with all the work]. We have a project manager handling up to 21 projects,” he said.

“So let’s kill the misconception that Sanral has come to a standstill … [and] the construction industry has come to a standstill.”

Transformation

Mhambi added that Sanral believes transformation is a constitutional imperative, and it will drive transformation as long as they are the governing structure of Sanral.

He said despite all the transformation initiatives Sanral is pushing, the biggest construction companies in South Africa are still the biggest beneficiaries of the work being done by the roads agency.

“We will continue to support big companies in the construction space, but we will not do that at the expense of the small companies.

Read: Sanral tenders: Chair not fazed by challenges to new scoring system

“We will do that within a context that makes use of the big companies to assist the smaller companies to benefit, hence our sub-contracting requirements, request for skills transfers to smaller companies, our insistence on the employment of local communities wherever we are doing business and our insistence on progressively increasing the ownership of black people in businesses in South Africa,” he said.

‘Business as usual’

Kaiser Khoza, Sanral’s chief legal, risk and compliance officer, said 65 projects plus two in Port Elizabeth were interdicted but not Sanral’s procurement policy.

“We are continuing to implement that policy. There is a saying that an administrative decision or action remains valid until set aside by a court of law.

“It remains valid. Sanral is business as usual,” he said.

In the judgments to Part A of H&I and SMEC SA’s applications, the judges found that Sanral had implemented the new procurement policy without consultation.

Khoza said the judges had to provide reasons for granting the interdicts, and Sanral will be arguing this issue when Part B of the applications are heard.

Attorney Hein von Lieres, who is acting for H&I, said the Part B court process had been delayed because Sanral failed to provide a complete record as required by the uniform rules of court.

Von Lieres said it was only after H&I brought an application to compel Sanral to supplement the record that the roads agency eventually acquiesced and supplemented the record on 1 September 2023.

“Sanral ought to have filed its answering papers to H&I’s founding affidavit and first supplementary founding affidavit by 13 September 2023.

“The supplementary founding affidavit was filed on 31 July 2023. Thereafter, Sanral had 30 court days to file an answer, which brings one to 13 September 2023.

“Bear in mind that the second supplementary affidavit … was necessary because Sanral had not delivered a complete record and had to be encouraged to supplement the incomplete record,” he said.

Compliance

Khoza disputed that Sanral had failed to comply with the court rules in terms of the timelines for filing its answer to H&I’s founding affidavit.

He said Sanral waited a long time for the reasons for the judgment to Part A of the application, and it is only when that is delivered that it triggers the next step.

Khoza also stressed that Sanral got more time to answer because H&I had filed supplementary affidavits, and WBHO had joined H&I’s application and had only filed its papers on Friday.

He said the Judge President in the High Court in Gqeberha had “killed” all these issues by getting all the legal teams together, and everyone had agreed it was in their best interests to expedite the hearing of the application.

Khoza said Sanral must file its answering affidavit by no later than this Friday, and a full bench will hear the matter in November.

‘Wrong facts’

During Wednesday’s Sanral briefing, Mhambi also addressed a number of issues where he claimed people had received “the wrong facts”.

They included claims that:

• There are people who are suspended by Sanral because they refused to implement some decision retrospectively because that would have been illegal;
• Talk of resignations in droves;
• There is tension between the board and the management of Sanral; and
• Sanral is in a state of collapse.

Mhambi said nobody at Sanral has ever been asked to implement any resolution retrospectively and illegally.

He also denied Sanral has had “resignations in droves”.

Mhambi confirmed about 27 people had resigned out of a workforce of about 550, but only about nine were people in its core business, and only one was a senior person who left after being charged with wrongdoing.

He said there is “healthy tension” between the board and the management of Sanral.

Mhambi further disputed that Sanral is in a state of collapse.

“It has never been healthier, and it has never ever benefitted big business more than it is doing now.

“We are inundated with work even as we are talking. Check the reports of the big companies listed on the JSE and how much is in their order books from Sanral, and check how they see their pipeline moving forward from Sanral business.

“We are being blackmailed. This is a ‘gogga’ that is being used to try and galvanise some sections of our society against the leadership of Sanral.

“We do want to put that on record, and we want to blow that myth to smithereens,” he said.