Masisi's sister shuts down controversial Goodhope pipe
Innocent Selatlhwa | Monday July 28, 2025 10:58
This they state was their last resort as Water Utilities Corporation (WUC) has failed to settle outstanding issues with them. Further, they accuse WUC of dealing in bad faith and have even gone to the extent of reporting the Corporation to the Directorate on Corruption and Economic Crime (DCEC).
The revelation came before court after WUC dragged Phadi- Mmutle’s G&M Building Services (Pty) and Tianyuan Construction (Pty) Ltd Joint Venture (JV) after they admitted to shutting down the 15 chambers in the area.
In a letter annexed by WUC, written by the JV’s Project Manager Kelebogile Monnaatshipi in response to the letter, the Corporation wrote to them demanding that they unlock the padlocks or face legal action.
Monnaatshipi said they were deeply concerned by the threatening and unilateral tone of the correspondence, stating it neither conforms to the governing FIDIC Conditions of Contract (1999 Yellow Book) nor accurately reflects the status of the project.
Despite an earlier letter acknowledging that they had handed over the project, they state that the project has not been taken over.
“The infrastructure identified under Project Ref: WUC 14/273 has not been completed, certified, or formally handed over to the Corporation in terms of Sub-Clause 10.1 [Taking Over of the Works]. No Taking-Over Certificate has been issued, and as such, the works remain under the care and control of the Contractor. The Corporation has not fulfilled the preconditions necessary to assume possession or operation of the infrastructure,” Monnaatshipi stated.
Further, Monnaatshipi said the project has stalled primarily because the Corporation has failed to appoint a qualified Engineer, contrary to Sub-Clause 3.1. “This procedural failure undermines contract administration and has prevented the issuance of valid instructions, determinations, and payment certifications and that is what you had ample time to rectify to ensure you benefit from the amenities, but you chose to ignore same and you respond as if there is some urgency,” he wrote, adding that the matter was formally raised by the Contractor in their letter dated 6 May 2025, yet to date, the Corporation has not regularised this critical contractual obligation.
Additionally, the JV accuses WUC of avoiding meetings and imposing unlawful directives. They state the Corporation refused all good faith attempts by the Contractor to hold structured meetings to resolve outstanding issues.
“Instead, you unilaterally imposed decisions outside the Contract. Most egregiously, WUC forced the Contractor to procure materials exclusively from FLO-TEK, intentionally inflating costs and stripping the Contractor of P40 Million in legitimate profit which amount will be passed over to the Employer and in turn the tax payer. This was procurement interference of the highest order. The same materials could have been sourced elsewhere at significantly lower prices, which the Employer unlawfully denied to the detriment of state coffers,” Monnaatshipi wrote.
Corruption allegations
This conduct, he said is not only commercially oppressive but also raises serious questions of abuse of office and potential corruption, which he said they are duty bound to refer to the Directorate on Corruption and Economic Crime (DCEC). “In rhetoric we ask, who stood to benefit from the instruction to procure exclusively from FLO-TEK and why, the instruction remains the trail and we still need an explanation from yourselves on what informed the decision, we still await the Legal Department/ Corporation Secretary to explain,” they wrote.
Further, the contractors lament that works remain unpaid, labelling it commercial prejudice and liquidity. He said they find it wholly unacceptable that the Corporation, a public entity with statutory obligations to act in good faith, seeks to disregard its own non performance while threatening litigation over infrastructure it has neither paid for nor lawfully taken over.
“It is particularly troubling that the Corporation appears indifferent to the severe commercial consequences of its conduct, including the liquidity risk it has imposed on the Contractor, and the existential strain it places on a private sector enterprise executing government works in good faith. To attempt to compel performance under select clauses while blatantly ignoring your own obligations reflects a disturbing institutional arrogance. The contract is not a one-way instrument, and your conduct is antithetical to the principles of mutual performance and fairness embedded in the FIDIC model,” they wrote.
According to the JV, substantial works remain unpaid, both in respect of certified and uncertified works. “ The Corporation's attempt to demand access to incomplete and unpaid infrastructure while withholding payment is wholly unjustified and not in keeping with the Yellow Book, 1999,” they stated.
Furthermore, the JV states that the locking of chambers is lawful and protective stating that they have not been commissioned or certified and that they remain under the contractor’s custody and responsibility. “The decision to lock these chambers is not only contractually lawful, but also a necessary safety measure to prevent premature public access, potential misuse, or damage. Such protective steps are aligned with our contractual duty of care and good industry practice,” they stated.
They argue that the project has not been taken over in compliance with FIDIC, stating that WUC have not appointed a Professional Engineer for the project for them to take over the project. “If this problem remains, you will continue to suffer the community who are the beneficiaries of the project,” they stated.
Moreover, they stated that contrary to the submission by WUC, The Waterworks Act is not applicable.
“There is no lawful basis to suggest that the Waterworks Act applies to our conduct. Moreover, it is our position that any attempt by the Corporation to rely on this statute in a contractual dispute will amount to an abuse of process and an improper attempt to bypass FIDIC's contractual mechanisms,” they stated.
Further, they submitted that the letter from the Corporation was issued by Corporate Secretary, who they say is not recognised under the FIDIC Contract as an authorised party to issue instructions, make determinations, or represent the Employer in contractual matters. They argue only the Engineer may validly issue instructions to the Contractor.
In the absence of such an Engineer, any directive, especially one threatening legal action, is without contractual foundation and is respectfully rejected as ultra vires. In the future we ask_ that any individual outside the contract who communicates with us should first produce a resolution of the WUC Board so we know their capacity and authority for doing so.
Way forward
The JV stated that they remain willing to complete the project and enable public benefit. However, they argued that they shall not do so under duress or on terms that violate the contract.
They called upon the Corporation to: Immediately appoint a qualified Engineer; Settle all outstanding payments to date; Cease unilateral directives and threats outside the scope of the Contract; and Convene a meeting to agree on finalisation, certification, and structured takeover.
“Until the above actions are taken, we cannot unlock or surrender control of infrastructure that has not been taken over, paid for, or legally instructed through an Engineer,” they wrote.