PARTY

NUMSA goes to court over City Power solar water heater tender

Union says it suspects Joburg agency sought to circumvent looming local content requirements

NUMSA Takes City Power to Court

On Tuesday 28 May, the National Union of Metalworkers of South Africa (NUMSA) will take City Power to court over Johannesburg municipal electricity utility's refusal to disclose information on the basis of which a R800-million tender for supply and installation of low pressure solar water geysers was awarded in May 2012. The matter will be heard at South Gauteng High Court in Johannesburg. The union has also lodged an application with the Johannesburg Metropolitan Police Division (JMPD) for NUMSA shopstewards from all solar geyser manufacturing plants to picket outside the court on that day.

Why are we going to court?

Exactly a year ago, NUMSA wrote to City Power with a request for information that explains the criteria used to adjudicate the utility's tender for supply and installation of low pressure solar water geysers (BID 1883GS). On 21 May 2012, our General Secretary Irvin Jim wrote to City Power's Tender Advice Centre requesting a meeting where the electricity company could explain the decision that it had reached on awarding the tender.

Without exaggeration, we can openly say that in the 12-months since we wrote to City Power we have been met with skilful "duck and diving" and perfected delaying tactics. City Power even went to the extent of giving us a "dummy" of blank forms and documents, hoping that NUMSA would eventually abandon its demand for explanation of the Adjudication Committee's decision.

Hereunder is a chronology of our attempts to secure a meeting with City Power and an explanation on the decision of the Tender Committee:

21 May 2012: NUMSA General Secretary writes to City Power requesting a meeting with the municipal-owned electricity enterprise

23 May 2012: City Power writes back to NUMSA acknowledging the union's letter, with a promise to furnish the union with feedback soon

14 Aug 2012: After receiving no response, NUMSA writes another letter to City Power

13 Sept 2012: Lawyers instructed by NUMSA write to City Power requesting the information

19 Sept 2012: NUMSA lawyers write again to City Power after the company failed to acknowledge the lawyers' letter

Sept 2012: City Power writes back to NUMSA lawyers advising them that investigation relating to the bid was finalised and that the report will be tabled in the Adjudication Committee meeting of 15 October. In the same letter, City Power indicated availability to meet NUMSA and its lawyers "on any date after the 15th of October 2012"

15 Nov 2012: After postponement of numerous meetings and after obtaining City Power forms for a Request for Access to Record of Public Body, NUMSA filed an application with the company using Section 18(1) of the Promotion of Access to Information Act (Act. No.2 of 2000)

03 Dec 2012: City Power asked our lawyers to come and pick up the documents we have been requesting. When our lawyers picked up the documents they found out that they were blank

04 Dec 2012: Our lawyers wrote to City Power insisting that NUMSA requires the documents

08 Jan 2013: NUMSA lawyers wrote to City Power indicating the intention of the union to approach the High Court.

After so much unabashed stonewalling, the union had no option but to approach the High Court. Workers and the oppressed people of South Africa fought hard against the secretive and unresponsive culture of public and private bodies under apartheid. The right of access to information in section 32(1) (h) of the Constitution is a direct result our struggles. NUMSA will not sit idly while our rights are being trampled by corporatised public utilities such City Power. As a union, we will not fold our arms when municipal entities refuse to act in a transparent manner. City Power, if it is a genuinely publicly-owned entity should be in the forefront of promoting transparency and the right of access to information. The electricity utility should have nothing to hide from the public who supposedly owns City Power and who the company is meant to serve.

What is the significance of the matter?

In addition to our principled defence of our constitutional right of access to information, NUMSA is taking up the case for two other reasons. Firstly, NUMSA is the union that organises workers in plants that manufacture solar water heaters. Secondly, the union has been involved since the beginning of 2012 in efforts to have solar water heaters designated under the revised Preferential Procurement Policy Framework Act (PPPFA) regulations.

The inclusion of solar geyser components in the January 2013 Department of Trade & Industry (DTI) list of designated products is a direct result of our efforts. What this means is that solar water heaters that are put on rooftops using the public purse must be manufactured locally and that the components that go into the solar heating systems must be "Proudly South African".

It is our suspicion that the swiftness with which the request for tenders was issued by City Power and the tender awarded was a calculated way to circumvent the local content requirements that were being negotiated. Since President Jacob Zuma launched the programme for public sector installation of 1-million solar water heaters by 2014, NUMSA has been critical of large scale importation of geysers used in the rollout. Our request for an explanation of the basis on which City Power awarded the tender is to precisely look at how much weighting in the whole process was given to local manufacturing. Government together with labour and business are signatories to the October 2011 Local Procurement Accord. City Power as a local state entity is bound by the accord.

Conclusion:

NUMSA will leave no stone unturned in its efforts to obtain the information that it requires. While casting no aspersion at this stage, we are fully aware of reported shenanigans around City Power tenders including the R1.25 billion smart meter contract to the Vivian Reddy's Edison Power Group that is currently being investigated by the Public Protector.

Our effort for now is to get the information on whose basis BID 1883GS for solar water heaters was awarded. Our interest is to ensure that the bulk of goods and services that are used in the government infrastructure programme are procured and manufactured locally. For this we are prepared to go to the highest court in the land. For this, we will mobilise our members to act in defence of their interests.

On the City Power case we are talking and asking for support from our sister union that organises workers at the electricity utility, the South African Municipal Workers Union (SAMWU). We are positive that together we will break the hold of those who believe that decisions that affect communities can be made in smoke-filled rooms with no accountability to those that they are meant to serve.

Statement issued by Castro Ngobese, NUMSA national spokesperson, May 19 2013

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