A judge has found the Gauteng health department unlawfully awarded an expired R526-million three-year-long tender for crucial medical waste disposal services for over 200 provincial hospitals, clinics and medical facilities to two companies – and invalidated it.

On Thursday, Acting Judge Ahmed Cajee found in the Gauteng High Court in Johannesburg that the tender for the "Appointment of Service Providers to Render Comprehensive Healthcare Waste Management for the Department of Health Institutions for a Period of Thirty-Six Months" had "lapsed because no valid extension of the tender period occurred after 17th November 2022".

The tender and the Request for Proposals attached to it was, therefore, "of no force and affect", he said.

As a result, the contracts entered into by the Gauteng health department with Tshenolo Waste (Pty) Ltd and Phuting Medical Waste Management (PTY) Ltd were, "as a result of the invalid extension of the tender periods … declared invalid and set aside".

Tshenolo Waste had won a disputed R314-million contract to collect and dispose of medical waste in Tshwane and Johannesburg. Phuting Waste scored another disputed R211-million tender to do the same in Ekurhuleni, Sedibeng and the West Rand. Both companies – along with the Gauteng health department – have disputed that the medical waste tender had lapsed.

Cajee was clearly not convinced by those arguments.

In response to the judge’s ruling on Thursday, which followed urgent legal action by well-known medical waste disposal company Buhle Waste, Gauteng department of health head of communication Motalatale Modiba said it had "instructed its attorneys to appeal the ruling".

This, he said, was because Buhle Waste’s urgent application on 21 November had originally been for an interdict to block the department from taking any further steps in regard to the medical waste disposal tender, pending a substantive review of that tender process that would be heard later.

"The department is of the view that the court made an error by ordering a review and setting aside of the tender, as the issue of reviewing and setting aside the tender was not within the scope of the court proceedings at that time.

"This matter was specifically to be addressed in Part B of the application, which had not been heard yet. Therefore, the court should not have ordered a review or the setting aside of the tender and contract without hearing Part B," Modiba said.

Modiba said based on these grounds, the department’s considered position is that the judge’s decision exceeded the appropriate scope of the judgement. As a result, the department has since filed a notice for leave to appeal the judgement, which then renders this matter sub judicare (not yet concluded by the Court).

Modiba did not respond to further queries from News24 about whether the Gauteng health department could provide the province’s residents with any assurance that the safe disposal of medical waste would not be disrupted as a result of the ruling.

Nor did he address questions about whether the two companies who were awarded the now invalidated medical waste disposal tender possessed the requisite medical licensing.

In her legal challenge, Buhle Waste director Evelyn Masedi painted a disturbing picture of how she says the medical waste disposal tender process is riddled with illegality and incoherence, as well as apparent ignorance by the department as to what the legal requirements were for companies to be allowed to dispose of such waste.

She claimed that the Gauteng health department, which has repeatedly found itself at the centre of tender corruption and financial malfeasance accusations, had “breached the open tender principles” in the manner in which it had dealt with the medical waste disposal tender – by not addressing the questions posed by prospective tenderers in a transparent manner. It was only after Buhle launched its litigation that it had been able to establish that the disputed questions had actually been awarded.

Masedi also claimed the department had not conducted a site inspection of Buhle Waste’s facilities on the basis that it would only conduct such site visits at the premises of winning bidders. This, she said, "does not make sense even if the site evaluation was not compulsory for all bidders".

"The department's answer seems to exclude the site inspections as part of the relevant criteria for their purposes of making the award but nonetheless applies it to the successful tenderers in their capacity as the service provider after the tender would need to be awarded.

"In other words, the Department fails to consider the relevant site inspection scoring prior to award and seeks to apply it after the award has been made which it self-evidently cannot do".

Disturbingly, she said the Gauteng health department told Buhle that a South African Bureau of Standards (SABS) certification "was not compulsory" for prospective medical waste disposal bidders.

To make matters worse, Masedi said, the Gauteng health department had also admitted to using outdated legislation to evaluate the medical waste disposal tender bids.

"Related to this, and notwithstanding the department's admission of the error in identifying the relevant statute, the department nonetheless suggested that a licence from the South African Health Products Regulatory Authority (SAHPRA) was not compulsory," she added, before asserting that such a license was "mandatory" for any company tasked with disposing of medical waste.

According to Masedi, the way the tender requirements had been set out and explained gave the impression that the health department was both specifying what it wanted but also leaving "the door open to have the pre-determined requirements at evaluation stage influenced/determined by unspecified extraneous information not even referred to in the tender documents themselves…"

She added that this shows on any score, the department has no idea what it is truly evaluating and worse still neither to the bidders.

According to Masedi, the Gauteng health department’s "purported" basis for excluding Buhle as a potential bidder for the medical waste disposal tender was, in part, because of "alleged failure to use appropriate subcontractors" – something she said appeared to fly in the face of "value for money considerations".

None of these arguments appear to have informed Cajee’s ruling, which focused on whether the tender had been properly extended after it was first issued in July last year.

Masedi’s evidence will arguably cast a very long shadow over any further moves that the department may make in relation to the provision of medical waste disposal services to the facilities it identified in its tender documents, which include all of Gauteng’s state hospitals, clinics, pharmacies, dentists and emergency medical services centres.

Among these are Bheki Mlangeni Hospital, Charlotte Maxeke Academic Hospital, Chris Hani Baragwanath Hospital, Edenvale General Hospital, Helen Joseph Hospital, Rahima Moosa Mother and Child Hospital, Sizwe Tropical Disease Hospital, South Rand Hospital, Tara The H. Moross Centre, Wits Oral and Dental Hospital, Alexandra CHC Barney Molokoane Clinic, Braamfisherville Clinic, Chiawelo Clinic, Diepkloof Clinic, Diepsloot South Clinic and Discoverers CHC.

According to those tender documents, successful bidders would be required to collect and safely dispose of all "Health Care Risk Waste (HCRW)" – including "infectious HCRW" such as "blood-contaminated dressings, contaminated diapers, soiled mattresses, soiled pillows, gloves or any other disposable items suspected of being infectious or that have been in contact with bodily fluids".

Such items would need to be "containerised in bio-hazard cardboard reusable containers by the HCF [health care facility] staff prior to collection by the service provider" – to ensure that ordinary people were not put at risk of infection.