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Minister defies court over M33 airport project

Mohalenyane Phakela

TRANSPORT Minister,  Tšoeu Mokeretla,  is risking jail after defying a court order to produce details of how his ministry awarded a lucrative M33 million airport refurbishment project to a controversial South African company, LTE Consulting.

The company owned by the politically connected “entrepreneur”, Thulani Majola, was irregularly awarded the project to upgrade the Moshoeshoe I International Airport while facing liquidation proceedings in South Africa for reneging on some other contractual obligations in that country.  It is alleged the company has already been paid large amounts of money by the Transport ministry in Lesotho without actually having done any work at the airport.

Minister Mokeretla now faces accusations of having hidden interests in LTE Consulting.  Thus pushing the controversial company’s interests at the expense of Basotho taxpayers.

His woes are likely to worsen in the wake of a likely contempt of court charge arising from his failure to honour a 5 August 2022 High Court order to produce a record of how his ministry awarded the M33 million tender without a competitive bidding process.

Justice Moroke Mokhesi, of the Commercial Division of the High Court, had given Mr Mokeretla seven days from 5 August 2022 to produce the details of his ministry’s decision to award the tender to LTE.

This after the Association of Construction Companies (ACC) – which represents local contractors –  and a losing bidder,  PM Aviation Consultancy –  petitioned the court to  nullify the award of the tender to LTE.

However, the seven-day period has since lapsed without the minister complying with the order.

Lawyers representing the ACC have now written to a Tribunal in the Ministry of Finance, tasked with adjudicating disputes arising from the awarding of government tenders,  demanding the same record which the minister has failed to produce.

The Tribunal had been seized with the airport tender issue after one of the losing bidders,  WSSL Joint Venture, petitioned it to reverse the award of the tender to LTE.

WSSL wanted the award cancelled after alleging that LTE was not among the companies originally invited to tender for the project.

The Tribunal dismissed the application on the “basis” that former cabinet minister Mophato Monyake, a trained engineer who had submitted the petition on behalf of WSSL , had failed to prove authority to represent the WSSL Joint Venture.

Before the matter went to the Tribunal, it had first been handled by another division in the Ministry of Finance,  the Public Procurement and Advisory Division (PPAD).

The PPAD had  on 10 September  2021  reviewed and set aside the award to LTE citing the failure by the Ministry of Transport to follow proper procurement regulations.  It ordered that the tender be redone via an open, competitive tender process.

The Transport ministry then appealed to the Tribunal which found in its favour. The Tribunal agreed with the ministry that Mr Monyake did not have legal authority to represent the WSSL Joint Venture. It granted the ministry’s appeal on that technicality without even considering the merits of the case as the PPAD had done.

The Transport ministry had then proceeded with its work on the airport with LTE as per the award. This was until Amabhungane, a South African investigative media outlet, made the stunning exposure that at the time it was awarded the Lesotho project in June 2021,  LTE was in fact facing liquidation. The liquidation application  had been filed in the Gauteng Division of the South African High Court in March 2021 after LTE failed to pay a debt of  M8.9 million to another South African company, Kontinental Engineering.  LTE  had subcontracted  Kontinental  in a project to build a bus station in the City of Ekurhuleni in 2020 but failed to pay the balance owed.  A provisional liquidation order against LTE granted in July 2021 was made final on 24 February 2022.

After the expose by this reporter via Amabhungane, ACC and PM Aviation Consultancy, one of the losing bidders, had on 3 August 2022 petitioned the High Court for an order for Minister Mokeretla to produce the entire record of how the award of the lucrative tender to LTE had been done.  ACC has also made the hair-raising allegation that the Ministry of Transport has paid huge sums of money to LTE without the latter having done any work at the airport.

Justice Mokhesi had then issued his 5 August 2022 order for the Transport ministry to produce the record of the procurement cycle in “….the form of pre-posting of the proposed tendering documents, decision on selective tendering and conditions for participating in the bidding”. The seven-day period by which the record should have been given to the court has since lapsed.

The ACC is now demanding the same record from the Finance ministry’s Tribunal which condoned the award of the project to LTE after the Transport ministry had appealed the PPAD’s ruling nullifying the award.

If the Tribunal fails to produce the report within seven days from Monday 22 August 2022, the association’s lawyers, Hudson Chambers, have indicated they will join it to the planned contempt of court application against Minister Mokeretla.

Hudson Chambers are arguing that the Tribunal must have gazetted its decision to  overturn the PPAD’s ruling overturning  the award  to LTE.

They want the Tribunal to produce the gazette as well as its own record which informed its decision to let the award to LTE stand.

“….We request you to discover the gazette in which you published your decision because our diligent search for that publication yielded no positive response…,” states Hudson Chambers in the letter to the Tribunal in which the law firm makes it clear that failure to gazette the decision in favour of LTE violated the law and automatically disqualified the company from  the project.

The law firm chides the Tribunal for upholding the award to a company it knew was being liquidated and for conducting the award  proceedings in secret.

“We demand the record of the proceedings pertaining to the awarding of the tender…..within seven days, failing which we take it that you made quite insupportable decision (sic) which you did not even keep record thereof.”

Hudson Chambers plans to join the Tribunal in the contempt of court charges against Mr Mokeretla if it does not produce the record of its decisions favouring LTE.

Even though the Tribunal was not  a respondent in the 3 August 2022  application demanding the adjudication records in favour of LTE, the lawyers plan to cite it in the contempt application on account of the Attorney-General’s office – which was a respondent.

Mr Majola has faced repeated accusations of leveraging on his political contacts in both Lesotho and South Africa to extract lucrative contracts despite his abysmal project delivery record.

The M33 million airport refurbishment project had been spawned by the International Civil Aviation Organisation (ICAO)’s threats to shut Moshoeshoe 1 on account of its dilapidation and failure to meet the required international standards.

It would appear that threat is what caused the urgency for selective tendering and the bypassing of normal procurement rules.

But local contractors are adamant that LTE should never have been awarded the tender. Not least because it was not part of those originally invited to bid.

In his founding affidavit in the 3 August 2022 court application, the ACC’s Mohalenyane Masasa, goes as far as accusing Minister Mokeretla of having hidden interests in LTE. Mr Masasa insists the minister and his officials must have known that LTE was essentially a bogus entity undeserving of the airport project due to its liquidation.  LTE itself must also have disclosed the liquidation proceedings against it to the Transport ministry.

Circumstances, Mr Masasa argues, prove the corrupt connivance between LTE and the Transport ministry.