Mashaba fiddles as roads agency burns

2018-04-20 09:28
Herman Mashaba (News24, file)

Herman Mashaba (News24, file)

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Dubious contracts and a staff exodus have shaken the Johannesburg Roads Agency (JRA) under its IFP-aligned board over the past year, while the city's mayor, Herman Mashaba, has been accused of ignoring corruption at the agency to appease his coalition partners.

At the heart of the internal ructions at the JRA are alleged attempts by its chairperson to control tenders – as well as a disputed contract to repair the M1 Double Decker highway, a major Johannesburg thoroughfare.

Matters came to a head in August last year when three high level staff left the entity, including managing director Sean Phillips. This was after the chair, Sipho Tshabalala, pushed for the establishment of a project management unit (PMU) which would have taken control of tenders out of the hands of the JRA's own departments and handed decision-making over to private contractors.

Phillips and others say Tshabalala improperly involved himself in tenders and operational matters, pointing out that the PMU is reminiscent of the looting of the Limpopo roads and transport department in 2011, involving a project management unit run by a company linked to EFF leader Julius Malema.

Tshabalala has denied the allegations, claiming the PMU proposal was based on a successful Cape Town model.

Senior managers including the JRA's company secretary, Karen Mills, reported the JRA's governance problems to Johannesburg mayor Herman Mashaba and his anti-corruption tsar, Shadrack Sibiya.

However, many months later nothing appears to have come of these investigations, fuelling speculation that Mashaba, for all his tough talk on corruption, is willing to turn a blind eye when his coalition partners are implicated – in this case the IFP.

Instead Mills was pushed out after the JRA board got wind of the "protected disclosure" she made.

Meanwhile, after the non-performing contractor's agreement to refurbish the Double Decker highway was finally cancelled at considerable public cost, worrying signs have emerged of ongoing corruption involving the replacement contractor.

An overbearing chairman

amaBhungane has seen a submission written by the JRA's former managing director, Phillips, in which he details attempts by the board chairperson to control the awarding of tenders, which ultimately led to Phillips resigning in frustration in August last year.

Phillips was appointed in May 2016 when the ANC still controlled Johannesburg. In August, the DA took over in the local government elections, and as coalition partners the IFP were rewarded with political posts in the mayoral committee, including transport.

The IFP's Nonhlanhla Makhuba stepped into that position.

In his submission, Phillips says that "things seemed to be going very well" in the months following the elections.

That changed, however, when the tenure of the ANC-appointed board came to an end and a new board more aligned with Makhuba was brought in by the City in March 2017.

The IFP's choice for chairperson was Tshabalala – the owner of a well-known restaurant in Vilakazi street who made headlines in the 1990s for the murder of a guest at a society party and the sheer spectacle of his subsequent trial.

According to the submission, soon after being made chair Tshabalala approached Phillips and told him not to award any future tenders without his involvement.

Phillips adds in his document that "I indicated to him that his request was illegal… He indicated that, if that was the case, I should then consult with him 'informally' before awarding tenders. I did not agree to his request."

The Municipal Finance Management Act (MFMA) states that "no person may impede the accounting officer in fulfilling this responsibility" and that "no person may interfere with the supply chain management system of a municipal entity"

The JRA has denied that the chairman attempted to influence tenders.

But board minutes from June and July 2017 reflect Tshabalala's increasingly keen interest in the Double Decker highway contract, which had been awarded to a company called White Hazy. They show him overstepping his mark by claiming the board would have ultimate say in the contract.

The contract had become the subject of heated debate in board meetings, with managers arguing that White Hazy had consistently under-delivered and that the JRA therefore needed to get rid of the contractor.

However, the chief financial officer, Goodwill Mbatha, broke ranks with the rest of his management team and was vocal in support of extending the contract and giving White Hazy another chance.

This was in spite of the glaring problems with the contractor which the head of infrastructure development, Mpho Kau, and others pointed out, listing a host of reasons to cancel the contract.

These included disparities between their tender submission and the work they were doing, cost overruns and quality concerns, consistent failure to meet basic commitments including submitting health and safety information, cash flow problems, the reputational damage that the JRA was suffering as a result of delays, and the repeated recommendations from external consultants to cancel the contract.

Deadlines kept being pushed back. "Last year, when the project was supposed to be completed, they had done only 17 percent," says Kau. This figure is confirmed by JRA internal documents.

Despite this, the JRA told amaBhungane that the request to terminate the contract was "premature", adding that "further investigations" were needed before the termination process could be concluded.

White Hazy did not respond to written questions.

The minutes also show that questions were raised about board interference in tender decisions.

Tshabalala tried to argue that any decision by management to cancel the contract could be overruled by the board, though it was pointed out to him that this was beyond the board's authority in terms of the law governing the JRA – the MFMA.

A clear tension between Phillips and Tshabalala is evident in the minutes, with Phillips standing his ground against the chairperson's alleged interference, pointing out that the decision to terminate contracts rested with management and himself, as the accounting officer, and that the chairperson was wrong to assume the board had the final say on such matters.

Tender comrade

At around this time the board mooted the idea of establishing a Project Management Unit (PMU) to ostensibly streamline the awarding and management of tenders.

Kau and Phillips were alarmed at the proposal.

"I was concerned that this PMU was duplicating the work already being done by Mpho Kau's unit… I was concerned about the role of outside consultants in the procurement process," Phillips told amaBhungane.

Kau said much the same in his engagements with the board. 

His infrastructure unit played a key role in procurement in drawing up specifications and assessing tender applications. The PMU proposal would outsource those roles to a private company.

Kau told amaBhungane that those pushing for the PMU said it was necessary because his department was under-spending.

But Kau and Phillips maintain that the justification for the PMU was bogus and the board ignored spending improvements over the years and a massively rising budget which had gone from about R290-million when Kau joined in 2009, to R1,3-billion last financial year. 

According to Kau, his department was being scapegoated and any shortcomings that remained had to do with broader structural problems and procurement issues that were not the responsibility of his department alone. 

Phillips says that in the last financial year JRA achieved a sound figure of 92 percent expenditure and would have achieved higher were it not for the City's financial constraints which resulted in delayed transfers.

The JRA denied that the PMU would, or even could, circumvent normal tender processes. "There is not duplication of any role in the Company," its spokesperson said.

Tshabalala added that the PMU was "benchmarked against the City of Cape town, which has implemented a PMU."

According to the scope of the PMU proposal drawn up by Mbatha, the PMU would "oversee, manage and supervise the planning and implementation of key projects." This would include evaluating bids and negotiating contracts.

In his submission, Phillips writes that at as his relationship with the chairperson was souring and he was on the brink of resigning, a political adviser to the IFP's Makhuba requested an urgent meeting.

According to the submission, at the meeting Phillips was requested not to resign and was reassured that the political leadership of the IFP would find ways of ironing out his relationship with the chair.

However, he was also told to "be aware" that political parties rely on donations from service providers who are given tenders, and that the decision to form the PMU was jointly taken by the IFP and EFF in order to side-step Kau's department.

When he heard this, Phillips writes, "the hair stood up on the back of my neck," adding that it reminded him of tender fraud at the Limpopo roads and transport department in 2011 in which the EFF's leader was implicated.

In her 2012 report, On The Point Of Tenders, the Public Protector pointed to corruption involving the department's awarding of a project management tender to On Point Engineering – a company linked to Julius Malema through his Ratanang Family Trust.

The report noted that the tender awarded to On Point was fraudulent, and that On Point was in a conflicted position acting as project management agent while entering into agreements with service providers it was supposed to oversee.

A subsequent corruption and court case against Malema was thrown out in 2015 after numerous delays, with one of his co-accused claiming ill health.

At the time, the National Prosecuting Authority noted that Malema was not acquitted and charges could be reinstated.

Two-and-a-half years later the NPA has not re-enrolled the case, but it was reported this week that AfriForum's private prosecutor Gerrie Nel was initiating a private prosecution of Malema.

Makhuba said: "I categorically deny that my Political Advisor had such an implicating conversation with the former MD [Phillips]..."

"These are unfounded allegations aimed at discrediting the coalition government in the City of Johannesburg... we have appointed the City's Group Forensic and Investigation Services to conduct an investigation into these allegations and we await the outcome."

The EFF did not respond to questions about this allegation.

Staff take flight

Phillips and Kau were not the only senior staff to fall out with the chair.

The company secretary, Karen Mills, began raising what she felt were a number of alarming governance concerns.

Mills initially took her concerns to a member of the independent audit committee, who then raised it with the audit committee, which in turn raised it with the board.

amaBhungane has seen documents outlining Mills' concerns, which included matters such as a lack of independent checks on board members and their failure to disclose their interests, the chairperson's insistence on being provided an office and secretary at the JRA, and an alleged attempt by the chair to solicit money from service providers for an advertisement about him.

They also included concerns about Tshabalala's involvement in tenders. 

Tshabalala denied allegations put to him, saying that neither he nor the board influenced tenders or funnelled money to the IFP.

In an interview with amaBhungane last year, Mills said that instead of dealing with the substance of her concerns the board attempted to muzzle her.

She says that in an August meeting the board informed her that she was only to raise concerns with the chairperson or head of the board's audit committee. Internal documents back this allegation up. 

A frustrated Mills then decided to submit her complaints in a protected disclosure to Shadrack Sibiya's forensic unit at the City of Johannesburg.

However, the board managed to get hold of copy of the disclosure and decided to punish her. On 12 August she was suspended by the board for not following their instructions to only raise matters only with them.

At around the same time as Mills was attempting to air her concerns, Phillips tried to take his grievances to the DA mayor, Herman Mashaba.

Phillips says he was so disturbed by the way Mills was being targeted and the actions of the chairman that he "decided to take the extraordinary step of asking for a meeting with the Mayor."

"At this initial meeting, the Mayor indicated that the Chairperson should not have anything to do with tenders and that the Board should not pursue the establishment of the PMU without addressing my concerns," says Phillips in his submission.

A second meeting was to follow, this time with the chairperson, city manager and Makhuba also in attendance. 

According to Phillips, the chairperson simply said that their falling out had to do with personality clashes, at which point he offered an apology and a commitment to work together, with the mayor requesting that Phillips do the same.

Phillips says he was disappointed in the mayor for simply taking Tshabalala at his word.

"I had expected him to at least confirm to the Chairperson that he may not be involved in the award of tenders, that he must withdraw the suspension of the Company Secretary, and that he may not proceed with the establishment of the PMU until my concerns about it were addressed. The Mayor said none of these things."

Matters came to a head on August 12 when Phillips decided to resign, the day after his meeting with the mayor.

The board would not let him serve out his notice period and he was given moments to pack up his belongings before being marched out of the JRA offices.

Phillips says that he notified the mayor but never received a response.

That same day, Mills was placed on suspension for failing to follow the board's instructions. She would reach a settlement with her employer the following year.

Kau followed a mere week after Mills and Phillips left, tendering his resignation on August 18.

"Frankly I expected the mayor to step in at some point," said Mills. "Sibiya reassured us we should keep getting on with our work and that his team was dealing with the matter, then it all got swept under the carpet."

Sibiya told amaBhungane that investigations into the JRA had stalled because the company contracted to do the investigation had not been paid, but that a report would be available within a week or two. That was on 19 February.

When amaBhungane followed up on the matter in April it became clear that a number of investigations related to the JRA were held up due to a budget shortfall after investigative departments in the City were restructured.

amaBhungane understands that one of these investigations has flagged possible fraud relating to the White Hazy contract.

Sibiya's office said that outstanding invoices have now been paid, though the due dates for the investigations has been pushed back and it is unclear what the scope of those investigations is.

For its part, the mayor's office denies that Mashaba is sitting on his hands.

His spokesperson said that "during the Mayor's engagement with the parties, the Board Chairperson explained that the Board was of the view that they had an oversight role to play in the governance of the JRA."

"The Board Chairperson then apologised to Dr Phillips for any action which may have been perceived as overstepping the Board's role and committed himself to working towards building a better working relationship with Mr Phillips."

"Indeed, the Mayor found this to be a reasonable approach to the matter. Unfortunately, following this engagement, the Dr Phillips elected to resign from his position without providing any evidence of alleged wrong-doing by the Board or any of its representatives."

Phillips says that he raised serious governance concerns and the mayor did not need to wait for hard evidence before taking a firm position.

"The chairperson wanted to be involved in the awarding of tenders which is illegal. Should I have allowed him to do so before going to Mashaba for support?" 

Phillips says that without the mayor's support he would be compromised in carrying out decisions against his conscience. 

The mayor's spokesperson told amaBhungane that Mashaba was only respecting proper processes and could not intervene in the JRA without an investigation running its course.

Mashaba, however, showed no such hesitation in early 2017 when he replaced the board of City Power and removed the mayoral committee member overseeing that agency, Anthony Still, because of a disagreement over how to deal with managing director Sicelo Xulu.

Mashaba wanted Xulu gone, ostensibly because of corruption at City Power.

Still said at the time that "there have been allegations against Sicelo and he has been investigated many times, and I've looked at those investigations and they [the allegations] have not held water."

A separate investigation conducted at the insistence of the mayor had not been concluded by the time Xulu was removed in mid-2017.   

Danger ahead

Before their departure, Kau and Phillips had kicked up such a fuss around the White Hazy contract that the board had no option but to go along with the process of terminating the contract.

In July, Phillips had begun the process of terminating the contract, despite the reluctance of the chair and CFO. The contract was officially cancelled on 31 July.

A legal opinion delivered in September, after the departure of Phillips, upheld the validity of the termination.

In December the JRA then signed a termination agreement with White Hazy in terms of which the contractor would be paid out R3,3-million, bringing the total amount paid to White Hazy to R16-million.

However, there are already red flags surrounding the appointment of the replacement contractor late last year.

In November a controversial company called Khato Civils was contracted to take over from White Hazy.

A City Press investigation implicated Khato in a story that exposed massively inflated tenders and irregular contracts during Nomvula Mokonyane's stint as minister of water and sanitation.

In the JRA case, the appointment of the new contractor never went out to tender – something the JRA tried to justify by saying that Khato's appointed was on an emergency basis.

But since the JRA dragged its feet when it came to terminating the White Hazy contract, the 'emergency' appears to have been self-imposed.   

Alarmingly, the contract has also ballooned from R71 million (later adjusted to R80million excluding VAT) to R169 million, partly because the double-decker bridge conditions were allowed to deteriorate.

According to the JRA, Khato commenced work that needed immediate attention in December, but a full handover only took place in February.

However, amaBhungane has seen documents showing a series of questionable upfront payments to Khato to the tune of R22-million.

The documents are dated 4 December. This was long before the full handover, and by the time of the payment the contractor could only have put in a few days of emergency work at most, yet was paid around 13 percent of the contract's total value. 

Approached for comment, the JRA appeared to admit the payment, saying: "The payment made was based on the payment plan and work is being drawn from the payment made." 

The agency attempted to justify the prepayment by claiming that it followed a similar, previous arrangement made for the Oxford Federation Bridge rehabilitation "at a much larger scale."

What the JRA conveniently overlooked, however, was a fundamental difference in the latter project.

In the Oxford Federation project Sanral was given an upfront payment, but this was permissible because Sanral is also a public entity.

As JRA sources pointed out, this counted as an intergovernmental transfer, and did not have a bearing on procurement.

A JRA source said that "when [Sanral] implement a project for you, you do an upfront payment because they can't use their resources and claim from you afterwards. Their funds are earmarked for other projects."

In response to written questions, Khato Civils said there were nothing irregular about the payment.

The company said that after signing the contract it needed to claim a portion of total costs "in order to start the work immediately and also mobilise the required resources for the execution of the project."

"These included site establishment, purchasing of relevant equipment needed for the entire scope of the project."

amaBhungane consulted a governance expert and several well-placed sources in public entities and within the JRA, who confirmed that upfront payments to private contractors are irregular.

The breakdown of the payment, which includes a line item for "staff teas and welfare", casts further doubt on the necessity of the payment. 

The sources also questioned why a company that was appointed on an emergency basis for a large undertaking would not have had sufficient capacity and cash-flow.

JRA sources say they felt very uncomfortable about the payment and tried to prevent it, but that ultimately it was pushed through in December.

They say that the 'emergency' basis on which Khato was appointed was a manufactured and self-imposed emergency, and that if there hadn't been an attempt to block the cancellation of the previous contract all of this could have been avoided.

amaBhungane.co.za

Read more on:    herman mashaba  |  johannesburg

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