Picture: REUTERS
The commission said Eskom failed to comply with section 10 of the act in awarding the controversial R4bn tender to Dongfang, an entity with zero black ownership, when the tender required at least B-BBEE Level 4, which calls for elevated black ownership, among other targets. Sakeliga is also engaged in litigation with the department of public works to have regulations that allow race-based pre-disqualification of prospective contractors set aside. The regulations, adopted in 2017, allow state-owned enterprises such as Eskom to set their own discretionary and arbitrary minimum BEE requirements a contractor must meet if it wants to do business with the power utility, said Sakeliga.
“The ruling by the B-BBEE commission raises serious questions on the application and impact of BEE at state-owned enterprises. In this case, the ruling shows how Eskom’s tender committee negligently at best, or fraudulently at worst, selectively applied BEE criteria to disqualify some contractors, while at the same time flouting rules in awarding a tender to Dongfang,” said Le Roux.