This after the North West municipality’s court application to have the contract with Kwende Construction squashed by the high court in Mahikeng failed last week. Instead, the court reinforced its July order compelling the council to pay the outstanding R6.7m debt owed to Kwende. The company was hired in 2023 in an emergency procurement to save the collapsing power supply, which had affected a large part of Ditsobotla.
However, on completion of the job and receiving the Certificate of Completion from the council, Kwende was only paid R1m due to Ditsobotla’s cash flow problems. According to the court papers, on 22 December 2023, the municipality signed an Acknowledgement of Debt (AOD) explicitly recognising its indebtedness to Kwende in the outstanding sum. It further recorded that all internal processes, prescripts and procurement obligations had been followed.
After years of not settling the bill, Kwende took Ditsobotla to court and in July, the court ruled in its favour. However, Ditsobotla has since disputed the amount owed and declared the procurement process irregular, rendering the contract invalid and that there was no emergency in sourcing the tender. But acting judge Charlotte Oosthuizen-Senekal dismissed this, accusing the municipality of attacking its laws while citing the admissions in the AOD the council signed.
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“The allegation that there existed a material dispute of fact barring motion procedure is contradicted by the evidential record. The municipality produced no contrary invoices, no recalculations, no procurement file, no internal correspondence, no budget records, and no proof of irregular pricing,” read her judgement. The judge added that Kwende placed before the court a bundle of documents which it got from Ditsobotla which dispute the allegation of incorrect billing.
“It is of particular significance that throughout its answering papers, the Ditsobotla never once disputed thequantumof the outstanding amount reflected in these documents, nor did it tender any alternative calculation, evidence or explanation suggesting that the capital sum acknowledged and certified was inaccurate,” read Oosthuizen-Senekal’s judgement. “When confronted with its records, Ditsobotla offered nothing more than generalised denial, unsupported by countervailing facts. However, such bald denial is incapable of generating a genuine dispute of fact,” she said.
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