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Time running out to sort out Free State festival mess after court ruling on ‘unlawful’ tender

Time running out to sort out Free State festival mess after court ruling on ‘unlawful’ tender
MANGAUNG, SOUTH AFRICA ñ OCTOBER 14: Soul crooner Ringo Madlingozi performs on October 14, 2012 during the annual Macufe Festival in Mangaung, South Africa. (Photo by Gallo Images / Sowetan / Bafana Mahlangu)
Michelle Banda
By Michelle Banda
7 Oct 2022
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In the wake of a ruling that the festival tender was awarded unlawfully, the Free State department of sport, art, culture and recreation and C-Squared Consumer Connectedness were tasked with working out a solution. They also both filed appeals. But time is running out, given that the festival ends on Sunday.

The Mangaung African Cultural Festival is three events away from ending on Sunday, 9 October, but the Free State department of sport, art, culture and recreation has still not announced its official position, nor who will be taking over – if anyone – from C-Squared Consumer Connectedness to organise the outstanding events.

Those events are the Macufe Lifestyle Divas Show, the Macufe Main Festival and Macufe Soulful Sounds.

On Monday, the Bloemfontein High Court ruled that the decision by the department to award C-Squared the tender to organise the festival was unlawful and struck down the service agreement between them. 

This came after the legality of the contract was challenged by the losing bidder, Mosa Likobo of the event organising company, DS Consortium, who claimed the process to award the R16.8-million tender to C-Squared had been riddled with irregularities. 

Read more in Daily Maverick: “Free State’s Macufe festival will go on – just not as planned”

Now, the onus is on the department and C-Squared to sort out the mess –but  time is running out.

Judge Phillip Loubser said on Thursday that he had refrained from granting the following orders because they would not have been in the public’s best interests:


  • C-Squared, as the successful bidder, must be excluded from the re-evaluation;

  • The tender must be awarded to the applicant – DS Consortium – or the department of sport, arts, culture and recreation must be ordered to re-evaluate the bids submitted;

  • The tender must be awarded to the qualifying bidder who achieved the highest score according to the 80/20 preference points;

  • If the bidders have equal scores the tender must be awarded to the bidder who scored the highest number of preference points;

  • If the bidders are still equal the tender must be awarded to the bidder who scored the highest points for functionality; and

  • If the bidders are still equal the winner must be decided by drawing lots.


Loubser said he left it up to the parties involved – the provincial department and C-Squared – to find a way forward and avoid interference by the court, “which could have a disastrous effect on a wide front”.

On Friday, Likobo told Daily Maverick they were waiting for the department “to implement orders as communicated by the court”.

Soul crooner Ringo Madlingozi performs at the 2012 Macufe festival. (Photo: Gallo Images / Sowetan / Bafana Mahlangu)



“We are ready to work closely with the government to ascertain that this matter is dealt with swiftly and that we reach amicable solutions. It is equally important that our communities know that we do not take for granted that when the court declares a matter unlawful and to be set aside; that government would lead its execution and respect the rule of law,” said Likobo.

Appeals


The department and C-squared have filed leave to appeal and called for the festival to continue as planned. 

In terms of section 16 of the Superior Courts Act, 10 of 2013 (SCA), filing an appeal does not mean nullifying or suspending a judgment, which will only be set aside if the applicant can convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough.

Given this, and the fact that the festival ends on Sunday, the appeals might be too late.

The department’s leave to appeal will be heard on Monday, 10 October. 

Call for probe


On the sidelines, the DA’s David van Vuuren, member of the Free State legislature and chief whip of the official opposition, has requested that the legislature, in particular the public accounts and finance committee, launch an investigation into the Macufe contract. 

“It is essential that the public accounts committee opens an immediate investigation to interrogate the department regarding their appointment of the C-Squared Group… It is unacceptable that government departments continue to operate with such negligence without concern for taxpayers’ money,” he said. 

Asked for the department’s official standpoint, spokesperson Tankiso Zola said: “The matter is in the hands of our legal reps, so I can’t comment further. An official position will duly be shared with you through an official statement.” DM

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