Mabuza tender probe ‘a disaster’

2011-08-20 17:01

A report by a commission of ­inquiry ordered by Mpumalanga Premier David Mabuza to probe tender irregularities has been ­dismissed as a disaster by a senior advocate.

The inquiry’s findings should not be used to discipline officials and its only usefulness is the ­evidence presented in it, said ­advocate Patrick Ellis.

He recommended that public works, roads and transport head Kgopana Mohlasedi, who sought the legal advice to act against ­officials who were implicated, should bring criminal charges against his predecessor Priscilla Nkwinika for ­financial irregularities.

Despite Ellis’s advice, Mohlasedi has not brought criminal charges against Nkwinika but ­instead, has internally charged 13 ­officials with misconduct for flouting tender procedures.

In a memorandum to the ­department dated June 21 this year, Ellis said the commission – chaired by Nelspruit magistrate Naomi Engelbrecht – had no ­understanding whatsoever of the subject matter.

Engelbrecht referred queries to Mabuza’s office.

The inquiry probed alleged ­irregularities in awarding tenders to build an archive building and disaster management centre in Mpumalanga.

Mabuza’s ex-wife Ruth Silinda benefited from the building of the archive building contract.

In the scathing 26-page memo, Ellis said: “The report of the commission of inquiry is a disaster.

“Suffice to say members thereof had no understanding whatsoever of the subject matter of the investigation, and for purposes hereof I will give no further attention to it.”

While mindful of the transgression of the junior officials, Ellis ­recommended that they be seriously reprimanded but that no disciplinary action should be taken against them.

“Rather than spend manpower, costs and effort on disciplinary hearings of subordinate officials, I recommend the time, effort and cost should be put to better use by creating an effective, efficient and transparent system of financial and risk management and ­internal control to avoid a recurrence of the events that led to the current inquiry,” he said.

Two departmental officials who asked to remain anonymous for fear of victimisation claimed the 13 officials were targeted because they refused to endorse questionable tender decisions.

Mabuza appointed the commission in 2009 after whistleblowers raised the alarm about irregularities in the department, which is tasked with handling all contracts for buildings, roads and transport in the province.

When Mabuza announced the commission he redeployed Nkwinika in his office.

Nkwinika said she left in October after her ­contract expired without having been charged internally or criminally.

“I’ve read the commission’s ­report and it didn’t say I should be charged. I’ve moved on with my life now,” she said. She did not see ­Ellis’s report and therefore could not ­comment.

Department spokesperson Mpho Gabashane said the ­newly appointed MEC wanted to be given time to study issues in the ­department and to ­respond ­accordingly.

Mabuza’s spokesperson, Lebona Mosia, sidestepped detailed questions about Ellis’s report and about the commission, saying ­only that Nkwinika was charged with six counts relating to contravening supply chain management and Treasury regulations.

Mosia said Nkwinika was found guilty and dismissed, but no criminal charges were laid against her and the matter was referred to the Commercial Crimes Unit.

When told Nkwinika had ­denied she was ever charged, Mosia said: ­“After consultation with the state law advisors, I’ve been advised that you must request a copy of the disciplinary committee’s finding and the commission of inquiry ­report through the Public Access to Information Act process.”

Silinda’s company Lumkani and joint venture partner Stefanutti were awarded the contract to build the archive centre without the process being opened for competitive bidding. The department claimed that going out to tender – the contract had been awarded ­before but cancelled – would place the site at risk of flood damage.

Preparation of the site and construction of the building were ­separate. Ellis criticised the ­department’s decision to split the contract in the first place.

“That problem was brought about by the illogical splitting of the project into two phases,” Ellis said.

“As it turned out the contract was only awarded at the end of the rainy season, and the rainy season seemed to have played no part in galvanising the decision-making process into action.

“In retrospect, it was shown to be a false reason.”

He said Nkwinika, as accounting officer at the time, failed to ascertain whether there was money to cover the escalation of the project.

The initial contract of R94 million jumped to R164 million when it was awarded to Lumkani/Stefanutti JV.

Ellis noted that various reasons were given for the escalation.

“They are all nonsensical and devoid of merit,” he said.

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