Pansy Tlakula not financially liable for R320m lease bungle – lawyer

2014-06-05 15:41

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The Electoral Court should not make a recommendation that Independent Electoral Commission (IEC) chairperson Pansy Tlakula should reimburse the commission for any losses incurred as a result of the questionable R320 million lease scandal.

This was the argument put forward by Tlakula’s lawyer, Daniel Berger SC, today despite the Electoral Act giving the Electoral Court powers to “make any recommendations” to the National Assembly on completion of the hearing into her conduct.

The question arose when Electoral Court judge Lotter Wepener asked Berger if the court could recommend that the National Assembly recoup any losses suffered by the commission as a result of the controversial lease saga.

Berger said the court could not make any other recommendation to the National Assembly other than a recommendation on whether Tlakula had committed misconduct when she failed to declare to the IEC that ANC MP Thaba Mufamadi – who has a stake in the company that was awarded the lease tender – was her business partner.

“This court is not concerned about reviewing the awarding of the tender, but this court’s work must relate to Tlakula’s conduct and her continuation of being in office. The court can only make a recommendation that relates to whether she should be removed or not,” said Berger.

Wepener then quizzed Berger on whether the latter was attempting to limit the use of the word “any” as used in the Electoral Act.

Berger said he did not want to limit the powers of the court but explained that the use of the word “any” might not have a literal meaning of the word, “any”.

His response elicited giggles from the gallery and Wepener, including his two assessors.

“This court is not tasked with the responsibility of setting aside a tender or ensuring that no losses are incurred. This court is only tasked with investigating the allegations of misconduct.”

He reiterated that Tlakula simply made a mistake when she failed to initiate a full and open tender process.

Berger said Tlakula’s lapse in judgment, while she was chief electoral officer in 2009, should not be used against her in 2014 when she was the chairperson of the IEC who had overseen the management of the country’s elections, including last month’s polls.

“These things happen, we’re all human beings and when we have lapses of judgment we don’t regard that as a permanent blot on their credibility, impartiality and independence. Commissioners of the IEC, like judges will, from time to time, make mistakes but they will not be removed even if they do err,” said Berger.

A multiparty forum made up of the UDM, Agang, EFF, Cope and the ACDP has applied to the court to have Tlakula removed arguing that the independence, credibility and impartiality required in her post had been tarnished by her links to a senior politician, Mufamadi.

The parties have accused Tlakula of being politically tainted after an investigation by Public Protector Thuli Madonsela revealed that he had presided over the tender which was eventually awarded to Abland, a company in which Mufamadi has a 20% stake.

Since the application was brought to court last month, the IEC has been slapped with an R80 million lawsuit by Khwela City Properties, the company that scored the highest in tender procedures for the IEC lease and ended up losing it to Abland.

The report of the Treasury’s forensic investigation, which held Tlakula responsible for the murky tender, also found that Khwela City Properties should have been awarded the tender.

The hearing continues tomorrow.

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