Polokwane Local Municipality v South African Local Government Bargaining Council (SALGBC) and Others (JR2694/18) [2021] ZALCJHB 130 (11 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 2694/18

In the matter between:

POLOKWANE LOCAL MUNICIPALITY

Applicant

and

THE SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL (SALGBC)

First Respondent

COMMISSIONER M E PHOOKO N. O.

Second Respondent

RUDDOCK R NDOU

Third

Respondent

Heard: 18 November 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be 11 June 2021 at 17:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] In this opposed application, the Applicant (The Municipality) seeks an order reviewing and setting aside the arbitration award issued by the Second Respondent (Arbitrator) dated 8 November 2018. In the award, the Arbitrator found that the dismissal of the Third Respondent (Mr Ndou), was substantively unfair but procedurally fair, and had ordered his reinstatement together with back-pay in the amount of R1 353 532.00.

[2] Prior to dealing with the merits of the main application, a few preliminary points should be disposed of. Ndou’s answering affidavit and the Municipality’s replying affidavit were filed and served out of time. Ndou had however not filed a Notice of Objection in respect of the late filing of the replying affidavit. Given the circumstances of this case, the history of this dispute and the not so excessive delay in the filing of the answering affidavit, it is my view that the interests of justice dictate that condonation be granted in both instances.

[3] However, to the extent that the Municipality as it had readily conceded, sought to raise new material in its replying affidavit, it is trite that it is not permitted to do so. This is particularly since it chose to deliver the record of arbitration proceedings and file its Notice in terms of Rule 7A(b) without filing a supplementary affidavit. To that end, any new material raised in the replying affidavit will be struck off the record.

[4] Ndou was employed by the Municipality in the position of Information and Communication Technology Manager with effect from October 2012.

His services were terminated on 20 June 2017 following upon a disciplinary enquiry into ten allegations of misconduct. He was found guilty on five of them, viz; (i) Failing to comply with supply chain management policies[1]; (ii) Gross negligence; (iii) Gross dereliction of duties; (iv) Unauthorised or irregular expansion of a contract or scope of work of service providers; and, (v) Unlawful and/or irregular procurement of goods and services.

[5] Having been found guilty and dismissed, Ndou referred an alleged unfair dismissal dispute to the First Respondent, the South African Local Government Bargaining Council (SALGBC). When attempts at conciliation failed, the matter came before the Arbitrator for arbitration.

[6] At the arbitration proceedings, the Municipality called upon three witnesses to testify on its behalf, viz, Messrs Velli Mthombeni, its Manager: Performance Management; Kwena Marcus Mashiane, its Manager, Supply Chain Management, and Ramatuma Maenetja, its then Assistant Manager, ICT. Ndou had testified in his case, and also called upon Mr Moses Malomane to testify on his behalf. The Arbitrator as already pointed out, found that the Municipality had not discharged its onus in regard to the

allegations, hence an award of reinstatement and backpay.

[7] The Municipality contends that the award is reviewable on the grounds that the Arbitrator committed an irregularity and misconduct and/or misconceived the whole nature of the enquiry in arriving at a conclusion that the dismissal of Ndou was substantively unfair. It was further submitted that the Arbitrator exceeded his powers by admitting inadmissible evidence and rejecting other admissible evidence, and thus failed to consider the totality of the evidence before him

[8] It is fairly settled that the primary enquiry in review proceedings of this nature is whether the decision reached by the Arbitrator in the light of the evidence placed before him, is one that a reasonable decision-maker could not reach.[2]In South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality, [3]. it was further held that whether the decision of the Arbitrator falls within a range of reasonableness, involves a broad evaluation of the merits of the

dispute, and a consideration of whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. Thus, an award would be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator.

[9] To the extent that the Municipality had contended that the Arbitrator had committed gross irregularities, in Herholdt v Nedbank Ltd, ’[4] it was held that for a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii) of the Labour Relations Act (LRA),[5] the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. The Supreme Court of Appeal (SCA) further held that material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable.

[10] For the sake of convenience, I propose to deal with each allegation, the evidence and the Arbitrator’s conclusions in that regard, and determine whether these conclusions can be said to fall within a range of reasonableness.

[11] As a starting point, to the extent that it was alleged that Ndou had acted contrary to the provisions of the Municipality’s SCM policies, the testimony of Mashiane, the Municipality’s Manager Supply Chain Manager, was pertinent insofar as it related to a general application of the policy. Mashiane is responsible for overseeing the implementation of the SCM policies, acquisition, construct and logistics. In accordance with the policy, any procurement process involving services below R30 000.00, required the user to make a requisition and obtain three quotations from Supply Chain Management; the deputy CFO was responsible for signing off services in respect of amounts between R30 000.00 – R200 000.00; and any other services sought above R200 000.00 were supposed to go to through an open tender process, with the Municipal Manager having final authority.

[12] According to Mashiane, any variation to existing contracts of service with service providers was to be done in accordance with the SCM policies and procedures, and in some instances, the variation required the attention of the Bid Adjudication Committee (BAC). Furthermore, any variation or expansion of contracts was to be limited to 15% of the value of the contract. Mashiane’s testimony was based on the provisions of the SCM policy. Relevant in this regard is clause 56 (Extending/Expansion of Contracts).[6]

[13] Of further relevance is Clause 17 (Formal Written price quotations) of the SCM, which provides that quotations must be obtained in writing from at least three different providers whose names appear on the list of accredited prospective providers of the Municipality. Under Clause 18, the CFO must be notified monthly in writing of all verbal and written quotations, and formal written price quotations accepted by the Deputy CFO. Furthermore, procurement of goods exceeding R30 000.00 must be submitted to the Quotations Evaluation Committee, which will then make recommendations to the deputy CFO.

(i) The alleged failure to comply with supply chain management policy.

[14] In respect of the above, it was alleged that on 8 July 2016, Ndou signed and/or authorised a variation order in favour of Telkom (a service provider), to increase the Municipality’s bandwidth without the authority of the accounting officer. It was alleged that Ndou’s conduct had resulted in the Municipality incurring an additional or potential irregular expenditure in the amount of R443 534.85

[15] The Municipality’s case was that prior to quotations being obtained for any services, the request should have been made to the SCM Manager. In this case, it was alleged that Ndou had directly obtained a quotation from Telkom in regard to increasing the bandwidth. As a result, Telkom officials went to the Municipality’s Satellite offices to enquire about when the implementation of the increased bandwidth should take place. These officials had further presented the Municipality’s officials at these offices with a work order signed by Ndou, further advising them that there was an agreement to start the work. To that end, it was submitted that Ndou had without following the SCM procedures, accepted and signed off the quotation, which would have resulted in payment having been made upon the work being completed.

[16] Mthombeni further testified that the responsibility to authorise the additional work by Telkom was that of the Municipal Manager, and that Ndou ought to have sent a report to the Director: Corporate Services, who in turn would have made recommendations to the BAC for the purchase to be authorised. Mthombeni confirmed that the Telkom officials were however stopped from proceeding with the work, thus preventing any financial loss.

[17] Ndou’s response to the allegations was that he had indeed signed a quotation he had requested from Telkom, which had been appointed through a bid process. The bid specification had been prepared by the Deputy Manager, and the BAC had approved Telkom’s appointment. For the purpose of the implementation of the project, another person, Dorcas Mathabatha, the Assistant Manager, was in charge of the whole network infrastructure and was the Project Manager. His contention was that he merely implemented the terms of the Telkom contract, which did not amount to any variation. He further testified that Telkom was in any event not paid for the work in question as it had only submitted a quotation which was not seen through.

[18] The Arbitrator in determining whether the allegations as above were proven concluded that the Municipality had relied on ‘mere say so’ that Telkom officials came to the premises to increase the bandwidth, and it was not clear as to who and when any of the Telkom officials came to implement the changes. Since there was no evidence in regards to the details of the visit by the Telkom officials, there was no basis to find Ndou guilty of the charge in question.

[19] In determining whether the Arbitrator’s findings as above are reviewable, the issue is whether Ndou’s conduct constituted a contravention of the provisions of clause 56 of the SCM policies, to the extent that it was alleged that he had obtained the quotation and work order without following the necessary procedures. Taking into account these provisions and the evidence before the Arbitrator, it is my view that his conclusions in that regard are unsustainable for the following reasons;

19.1 If Ndou had not followed the SCM processes in obtaining the quotation and work order which he had signed, it was irrelevant whether there was an existing SLA with Telkom or not.

19.2 In finding in Ndou’s favour in regard to the allegations, the Arbitrator unduly placed too much emphasis on whether the Municipality had presented evidence in regards to the details of the visit by Telkom officials. The Arbitrator thus misconceived the nature of the enquiry, to the extent that it was not in dispute that the quotation and the work order were sourced and signed by Ndou. Once the work order and/or quotation signed by Ndou was not placed in dispute, it was sufficient for the Arbitrator to determine whether this was done in accordance with policies and procedures.

19.3 Thus, if Ndou had no authority to source the quotation or sign off the work order, then he would have acted outside the parameters of the SCM. Furthermore, it was of no relevance whether the quotation had resulted in the work being done or not, as the charge in question made reference to potential irregular expenditure, and in this case, the Municipality’s contention was that there was a potential loss flowing from irregular expenditure that was prevented.

19.4 Even though the work order was already signed, Ndou’s contention was that he was either still going to prepare a report as required in terms of the provisions of the SCM. In the alternative he had submitted that he did not see the necessity to follow the processes as there was no variation, and further since he had merely obtained a quotation which was not acted upon.

19.5 From Ndou’s own evidence, and to the extent that he was still going to prepare a report, when at about the same time the quotation was obtained and the work order was signed by him, it follows that he was aware that in the light of the work sought to be done and its value, he ought to have first sent a report to the Director: Corporate Services, who in turn would have made recommendations to the BAC for the work by Telkom to be approved.

19.6 The work order as signed effectively meant that Telkom could continue with the work, and this would have entailed a change to the existing SLA. Thus to the extent that it was demonstrated that the SCM policies were not followed leading to the quotation and the work order which was placed before the Arbitrator, the Municipality would have discharged its onus in respect of the allegation in question. It follows that the Arbitrator’s conclusions in regard to the charge in question is not supported by the evidence before him. The emphasis by the Arbitrator on irrelevant considerations pertaining to the lack of evidence in regards to the details of the visit by Telkom officials, and the glaring material errors of fact, had the consequences of rendering his findings in this regard unreasonable.

(ii) The alleged gross negligence and dereliction of duties:

[20] The allegations related to gross negligence and dereliction of duties are intertwined to the extent that they pertain to the events of 27 March 2017. Ndou is alleged to have caused the Municipality to switch from the old landline telephone system to Voice Over Internet Protocol (VOIP) telephones, without informing management, or ensuring that the Municipality’s communication system and other operations were not affected by the switch.

[21] The allegations of dereliction of duties pertains to Ndou’s alleged failure to conduct a feasibility study prior to the implementation of the VOIP system in the Municipality’s satellite offices. The switch to VOIP according to Mthombeni, was done without an assessment of accessibility, and had resulted in emergency services, traffic, water and electricity being disrupted. It was the Municipality’s case that these offices had less bandwidth than required for the implementation of the new system, and once the VOIP system was implemented, this had resulted in these disruptions.

[22] Ndou’s response to the above allegations was that telephone services used to fall under the Traffic Department and not the IT section. The switch from the old telephone system to VOIP took place at the time that he was on leave during the easter holidays (between 22 March and 4 April 2016), and he had not received any report in that regard. His contention was that Ms Dorcas Mathabatha, his assistant manager and also the Project Manager at the time, was not authorised by him to implement the

switch. He denied any blame in the switch to the new system, as he was merely the Project Owner, and not the Project Manager. He

disputed that there was a disruption to the communication system, and further denied that it was his responsibility to undertake a feasibility study, contending that it was in fact the responsibility of the service provider, together with Mathabatha. His testimony in this regard was supported by his witness, Malomane, who reiterated that the responsibility to conduct a feasibility study was that of the service provider.

[23] In respect of the above allegations, the Arbitrator’s starting point was that there was mutually exclusive evidence before him, in regards to who was responsible for undertaking a feasibility study prior to the implementation of the VOIP system and the switch. He found that there was no basis upon which Ndou could have been expected to undertake a feasibility study, as he did not possess the necessary skills to conduct such a study. The Arbitrator concluded that it was the responsibility of Telkom to undertake a feasibility study as the implementing agent, and Ndou could not therefore be found guilty in respect of that charge.

[24] The Arbitrator had accepted that the switch had caused disruptions, but found that Ndou was on leave at the time that the switch was implemented. The Arbitrator found that it was Mathabatha’s duty (who was then acting on behalf of Ndou) to explain how the switch was implemented, and whether any instructions were issued by Ndou in that regard. Since Mathabatha was not called upon to testify and Ndou was on leave at the time, he could not be found guilty on the charge.

[25] In these proceedings, Ndou persisted with his contention that he had no knowledge of the project; that he was on leave when the new system was implemented; and that Mathabatha was responsible for the switch as the Project Manager. He again insisted that no evidence was presented to demonstrate how the Municipality communication system and operations were affected by the switch to VOIP system. The latter contention is persisted with despite the Arbitrator having concluded that the switch had indeed caused disruptions. In regard to these allegations, again, the Arbitrator’s conclusions fell short of the reasonableness standard for the following reasons;

25.1 The Arbitrator simply accepted Ndou’s explanation which entailed merely washing his hands of any responsibility in an area that clearly fell within the scope of his responsibilities. The mere fact that Ndou did not possess the necessary skills to conduct the feasibility study was not an excuse, nor was that the primary enquiry before the Arbitrator. As the IT Manager and person with overall responsibility of the project, Ndou could not, even if he was on leave when the implementation took place, simply leave it to his assistant manager to see the project through.

25.2 It was clearly not enough for Ndou to contend that he had fulfilled his duties by merely approving the release of emails from Mathabatha informing staff of the changes to be implemented. To the extent that negligence entails a failure to exercise reasonable standard of care, it follows that more was required of Ndou as the overall IT Manager, and as Project Owner, to ensure that the implementation of the switch would cause minimum disruptions, including ensuring that a feasibility study had been conducted by the service provider, prior to the implementation of the switch. He instead sought to blame Mathabatha, his assistant manager, for his own failure to take responsibility for the project.

25.3 To the extent that the Arbitrator had accepted that the implementation of the VOIP system had caused disruptions, and further to the extent that it was common cause that Ndou as IT Manager had overall responsibility over the project, it follows that the Municipality had discharged its onus in demonstrating that Ndou was indeed guilty of gross negligence and dereliction of his duties. The Arbitrator’s conclusions are therefore not based on the material that was placed before him.

(iii) Unauthorised or irregular expansion of a contract or scope of work;

[26] The Municipality alleged that Ndou had expanded the scope of an existing contract with another service provider, Velaphanda Trading and Projects, without following the necessary procedures. The Municipality’s case was that the Service Level Agreement SLA[7] with Velaphanda at the time was specific in regards to the services to be procured, namely, to supply, deliver and maintain desktops,

laptops and peripheral devices for a period of three years as and when required. The Municipality’s contentions were that this did not include the procurement of and installation of software licence. It contended that any procurement that expanded the services to be provided in terms of the existing contract should have been requested through the SCM, since units within the Municipality could not in terms of policies, make direct procurement from service providers.

[27] According to Mthombeni, Ndou had varied the scope of this service by requiring the installation of software and securing further licences on devices, without having followed the necessary procedures. The expansion of Velaphanda contract without following procedures and without recommendations to the BAC had resulted in an irregular expenditure of R207 478.85. Mashiane in her testimony conceded that there was a need for the installation of the software. She however contended that the expansion of the Velaphanda contract to include the provision of software and licenses amounted to a variation of the original SLA, and that the SCM processes ought to have been followed.

[28] Ndou’s response to the allegations was that the installation of software on devices formed part of the existing contract of service, and that the purchase of the software was not only authorised, but that payment in respect of the said services were authorised by the CFO. He contended that he had merely implemented the services, which were renewed even after he was suspended.

[29] The Arbitrator’s findings in relation to these allegations was that Ndou had acted in accordance with the existing SLA with Velaphanda, which agreement was previously approved by the BAC and the Municipal Manager. The Arbitrator further accepted that the Municipality had also purchased the same goods from Velaphanda in October 2016, which demonstrated that Ndou had acted within the scope of the SLA and had thus not expanded the scope of the contract. Ndou therefore did not act in any unauthorised or irregular manner when the software was purchased.

[30] The question that was before the Arbitrator was whether the supply and installation of software and licences fell within the scope of the initial SLA with Velaphanda, and if not, whether the procurement of such further services constituted an expansion of the SLA in contravention of Clause 56(2) and (3) of the SCM Policy, amounting in an irregular expenditure of R207 478-85. Again, it is found that the Arbitrator’s conclusions in regards to these allegations are not sustainable, as they are not supported

the evidence that was before him. My conclusions in this regard are based on the following considerations;

30.1 It is common cause that the SLA[8] with Velaphanda required of it to supply, deliver and maintain desktops, laptops and peripheral devices for a period of three years

as and when required. The first consideration is that inasmuch as R207 478.85 was paid to Velaphanda in respect of the services in question, the Municipality’s contention was that it did so in order to avoid a dispute with a third party that had in fact provided the services. This version was corroborated by the new CFO having questioned the procurement when authorising payment, as he had required the reasons the procurement had went ahead despite the services in question not being covered by the SLA. In my view, if the services procured were authorised in terms of the SLA, there would have been no need for the CFO to authorise the payment without qualification. These concerns were further raised in view of the fact that the services were not directly provided by Velaphanda but by a third party, since it (Velaphanda), was not authorised to load software licences on the Municipality’s system, but only to provide software.

30.2 In conceding that he did not follow the SCM policies, Ndou had further relied on the provisions of an annexure to the SLA[9], for the proposition that he was entitled to procure software utilising the same SLA. Even if it were so, it was the Municipality’s

contention that it has a section for Asset Management which dealt with assets and have a separate Asset Management System in that

regard. It therefore followed that any further procurement of services not specifically mentioned in paragraph 1 of the SLA ought

to have been done through the SCM. The mere fact that the annexures referred to IT asset management software and office applications did not imply that Ndou could simply procure such services without consideration of his obligations as IT Manager, in ensuring that proper procedures were followed. This was even moreso where the services procured would have impacted or varied the prices quoted in the Bid proposal.

30.3 It therefore follows that the Municipality had discharged its onus in respect of the allegations in question, as the consequences of the procurement in question entailed an expansion of the SLA, resulting in an irregular expenditure of R207 478.85.

(iv) Unlawful and/or irregular procurement of goods and service:

[31] It was alleged that in June 2016, Ndou entered into an agreement with another service provider, Microsoft Enterprises South Africa, without following proper SCM processes. In this regard, Mthombeni testified that Microsoft presented the Municipality with a signed order authorising it to provide further services. He testified that Ndou had procured the services without bringing the matter to the attention of the Municipal Manager given the amount involved; without the BAC having recommended the work; or without a competitive bidding process being followed. Mthombeni testified that Ndou had no authority to source quotations as this was within the powers of the SCM unit.

[32] Mashaine’s testimony was that by signing the work order on 30 June 2016, Ndou bound the Municipality to an amount of R4.4m, when he should have first referred the matter to the BAC and the Municipal Manager, and it made no difference as to whether Microsoft had an existing agreement with the Municipality or not.

[33] Ndou’s response to the allegations was that the transaction with Microsoft was not new as it was simply part of the existing SLA. In this regard, he contended that he had merely requested a quotation from Microsoft, which was not binding on the Municipality as it was never pursued. He testified that that since the contract was in existence, the installation of software was part of maintenance, and he had discussed the issue at the IT steering Committee and the EXCO.

[34] In regards to the above allegations, the Arbitrator agreed with Ndou’s contentions that all that he did was to obtain a quotation from Microsoft, which did not translate into an agreement. The Arbitrator further reasoned that as was the case with the allegations in respect of the visit by Telkom officials, there was no evidence in regards to which of the officials from Microsoft had visited the Municipality in relation to the work, and there was therefore no evidence that Ndou had acted irregularly or in an unauthorised manner in procuring goods or services.

[35] Again, as with the conclusions reached in respect of the allegations pertaining to Telkom, the Arbitrator clearly failed to take into account the material placed before him and the essence of the allegations against Ndou, thus making his findings reviewable based on the following considerations;

35.1 The evidence before the Arbitrator was that there was an existing SLA between the Municipality and Microsoft SA. Ndou however sourced a quotation from Microsoft Enterprise (USA), and signed a Work Order with the latter entity on 30 June 2016. This was in respect of services related to the creation of the Municipality’s website. By attaching his signature to the Work Order, Ndou had bound the Municipality to its terms, inclusive of payment of an amount of R4.4m.

35.2 The quotation and Work Order came about in circumstances where again, it was common cause that the SCM processes had not been followed. The contention that Ndou was merely acting in accordance with an existing SLA or that he had merely obtained a quotation is therefore of no assistance to his case, in that even if that was so, the initial SLA with Microsoft SA did not extent to the creation of websites. Worst still, ordinarily, the sourcing of such quotations would have been the responsibility of the Supply Chain Management Service Business Unit. To the extent that Ndou was not authorised to procure the goods in question without following the SCM processes, inclusive of sourcing and obtaining a quotation, and signing a Work Order on behalf of the Municipality, it followed that the latter had discharged its onus in respect of these allegations.

[36] In the light of the conclusions reached above, it follows that the next enquiry would have been whether a sanction of dismissal was appropriate in the circumstances. It is my view that given Ndou’s position in the Municipality, and his posture towards the allegations against him, the sanction of dismissal was clearly appropriate. This is so in that Ndou had at all material times inclusive of in these proceedings, failed to appreciate the consequences of his conduct. The most serious of these allegations related to the gross negligence and dereliction of duties in respect of the switch to VOIP system, which the Arbitrator had accepted had caused disruptions to the operations of the Municipality. In that regard, Ndou had refused to accept or take any responsibility, and instead chose to blame a junior employee. Other than these disruptions, Ndou further failed to appreciate that he could not have on his own and without following the SCM policies, approach service providers, obtain quotations and/or sign work orders which were binding on the Municipality, or had the effect of varying existing SLAs with service providers. To the extent that Ndou failed

to appreciate the consequences of his conduct, or failed to appreciate the limitations on his powers as a manager imposed by the

SCM policies, or even failed to take responsibility nor show any form of contrition, these factors clearly demonstrated a breakdown in a working relationship, necessitating a dismissal.

[37] In the end, in terms of his duties to deal with the matter with the minimum of legal formalities, the Arbitrator misunderstood the nature of the dispute and the issues he was required to arbitrate. He failed to take into account or largely the material facts properly placed before him, and instead placed too much emphasis on irrelevant considerations. This approach had a distorting effect on the reasonableness of his ultimate decision. In conclusion, it cannot be said that the Arbitrator, in the light of the material placed before him, arrived at a decision that another decision-maker could reasonably have arrived at. Further in the light of the material placed before the Court and conclusions reached in respect of all the allegations against Ndou in this judgment, no

purpose will be served by remitting the matter back to the SALGBC for a hearing de novo, and an appropriate order would be to substitute the Arbitrator’s award.

[38] Further having had regard to the requirements of law and fairness, there is no basis upon which it can be said that Ndou was not entitled to oppose this application, and I am of the view that any costs order is not warranted in this case.

[39] Accordingly, the following order is made;

Order:

1. The arbitration award issued by the Second Respondent dated 8 November 2018 is reviewed, set aside and substituted with an order that;

‘The dismissal of the Third Respondent (Mr RR Ndou) by the Applicant (Polokwane Local Municipality) was fair.’

2. There is no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

M.S. Mphahlele SC with MM Malatji, instructed by AM Carrim Attorneys INC

For the Third Respondent: M.N. Mabuza, instructed by Machaba INC Attorneys

[1] The Polokwane Municipality Supply Chain Management Policy

[2] Sidumo and Another v Rustenburg Platinum Mines and Others (2007) 28 IJL 2045; [2007] 12 BLLR 1097; 2008 (2) SA 24; 2008 (2) BCLR 158 (CC)

[3] [2020] ZALAC 53 (2 December 2020) at para 27

[4] (701/2012) [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA) at para 25

[5] Act 66 of 1995, as amended

[6] Which provides: 1. ‘It is recognized that, in exceptional circumstances, an accounting officer may deem it necessary to expand or vary order against the original contract. 2. Contract(s) may be expanded or varied by not more than 20% for construction related goods, works and/or services and 15% for all other goods or services of the original value of the contract, after approval by the BAC and while on tenders above R10 Million must be approved by the Accounting Officer after BAC has recommended to the Accounting Officer on the proposed variations. 3. Any expansion or variation of contract in excess of these thresholds must be regarded as an amendment to contract and should be approved by council.’ 4.

[6] Which provides:

1. ‘It is recognized that, in exceptional circumstances, an accounting officer may deem it necessary to expand or vary order against the original contract.

2. Contract(s) may be expanded or varied by not more than 20% for construction related goods, works and/or services and 15% for all other goods or services of the original value of the contract, after approval by the BAC and while on tenders above R10 Million must be approved by the Accounting Officer after BAC has recommended to the Accounting Officer on the proposed variations.

3. Any expansion or variation of contract in excess of these thresholds must be regarded as an amendment to contract and should be approved by council.’

4.

[7] Page 55 of Bundle D

[8] Page 55 of Bundle D

[9] Annexure 1C- ICT Main Contract under Clause 9 (Service and Asset management) ‘(b) IT asset management software and office applications To be procured on on a market related price depending on the Rand/Dollar exchange’

[9] Annexure 1C- ICT Main Contract under Clause 9 (Service and Asset management)

‘(b) IT asset management software and office applications

To be procured on on a market related price depending on the Rand/Dollar exchange’