Legal battle over Roux Shabangu tender

2012-05-21 20:47

Pretoria - The public works department and suspended deputy director general Sam Vukela are at odds over an application to set aside a police lease agreement with businessman Roux Shabangu.

In September, Vukela deposed an affidavit in support of the department's application.

However, he allegedly slipped an additional affidavit into the court file in which he defended the decision not to call for tenders prior to the conclusion of the agreement.

On Monday, the department applied for an order in the North Gauteng High Court in Pretoria to strike Vukela's supplementary affidavit.

It claimed his actions were "scandalous" and ought to be sanctioned with a punitive costs order.

In her report on the lease debacle, Public Protector Thuli Madonsela recommended that disciplinary action be taken against Vukela.

She found he had acted in breach of his duties by directing the department to follow a negotiated process as a procurement strategy for the lease agreement.

In his additional affidavit, Vukela described himself as "the proverbial sacrificial lamb".

He claimed former public works Minister Gwen Mahlangu-Nkabinde had treated him "unfairly and unlawfully" by putting him on special leave.

He claimed she had "directed" him to sign the founding affidavit which did not place a full picture of the facts before the court.

According to Vukela, the process of compiling the founding affidavit had not been characterised by openness and was equal to being forced to sign at "gunpoint".

"... What I did not know at the time was that I was 'directed' to sign the affidavit in order for me to be made an 'escape (sic) goat' and to be insinuated (sic) as a 'corrupt' person.

"... I cannot continuously be deprived of an opportunity to put my version of events as, to date, I have never been heard on any complaint of alleged wrongdoing and yet I am literally shadowed by indirect or veiled accusations and that is unfair..." he said.

Vukela claimed in his additional affidavit there were good reasons why tenders were not called for.

He said of the 2950 lease agreements concluded by the department between 2008 and September 2011, 2415 were negotiated and only 226 were put out to tender.

Devoid of truth

Mahlangu-Nkabinde said in an affidavit that Vukela's vague and emotive allegations were devoid of truth.

She said Vukela had at no stage expressed an unwillingness to depose the founding affidavit and had never complained that what he had said was materially untrue.

He had also never complained that "the lawyers" were "not interested" in considering information which did not indicate that the lease was invalid.

"Mr Vukela was no scapegoat. He was the administrative head of the department at the time, its most senior official, and its accounting officer," she said.

"Moreover, this had been his position at the time of the initiation of the procurement of the lease agreement.

"... Any lack of 'openness' is to be attributed to Mr Vukela. He was not 'open' to me as regards what he now contends: that his own attestation under oath was... false and misleading, because it took place at what he vaguely terms 'at gunpoint'."

Counsel for Vukela, MC Erasmus SC, argued that the department's application was premature and that the court hearing the lease agreement application should decide on it.

He said the allegation that Vukela was in cahoots with Shabangu could not be drawn as Vukela had attempted to engage with the minister on at least four occasions, but she had not got back to him.

"Vukela doesn't come with speculation. He comes with hard facts about the other tenders where a negotiated process was followed," Erasmus argued.

Counsel for the department, Jeremy Gauntlett SC, argued that Vukela was not party to the proceedings and could not simply insinuate himself into the matter without being joined as one.

He argued that the affidavit was irrelevant, that it was not supported by either of the parties involved and had been filed by subterfuge and in bad faith.

Judge Eberhard Bertelsmann reserved judgment.

- SAPA