Protector's challenge to the president

Thuli Madonsela has thrown down the gauntlet to President Jacob Zuma, demanding that he confront her awkward findings and recommendations on two police lease deals worth a total of R1.78-billion.

On Thursday the public protector released the second of her devastating reports on the leases, calling on Zuma and his Cabinet to take action against Minister of Public Works Gwen Mahlangu-Nkabinde, national police commissioner Bheki Cele and senior officials.

Madonsela’s latest report found that a lease agreement between the public works department and businessman Roux Shabangu, for a headquarters building for the provincial South African Police Service in Durban, is invalid.

In her previous report, released in February, she made similar findings about another police lease in Pretoria, also between public works and Shabangu.

Zuma has delayed acting on the Pretoria report, sending Justice Minister Jeff Radebe to negotiate for action to be taken only after the release of the latest report.

Now it is time for the president to show to his backbone on the issue. Will he accept the findings and act decisively, or will he delay again?

The political ramifications of both options are significant.

New evidence

Madonsela’s recommendations are stronger now, as they are bolstered by new evidence, and the political atmosphere has become charged by the furore that followed last week’s media leak of the protector’s “imminent arrest”.

But if Zuma acts on her recommendations there could be unpleasant political consequences—particularly if his role in the Shabangu leases was not benign. It is still not clear, for example, why Zuma sacked former public works minister Geoff Doidge, who was investigating the Shabangu deals.

And it is suspicious that Mahlangu-Nkabinde, Doidge’s replacement, promptly suspended director general Siviwe Dongwana—who was also investigating the deals—and pushed the Pretoria lease through against senior legal opinion and despite her department’s decision to suspend the lease.

Commenting on such suspicions, Madonsela said: “We could not find evidence of criminality.
We could not explain why people behaved the way they did. The conduct of the police and the public works department was quite strange in trying to move regardless of the circumstances. But I can’t make findings on the basis of a hunch. Their behaviour was strange.”

She said: “I am not prescribing what should be done, but I expect the president to do the right thing.”

The biggest problem Madonsela has handed to Zuma is Mahlangu-Nkabinde, who refused to answer certain questions during the public protector’s investigation.

Madonsela said Mahlangu-Nkabinde’s behaviour was improper and unlawful and the minister had “failed to meet the requisite of statesmanship expected from her”. She urged Zuma to consider taking action against Mahlangu-Nkabinde.

Deadlines

The minister should, within 60 days, “report to the Cabinet on her actions in relation to the procurement of the leases — and her failure to fully co-operate with the public protector”.

Zuma will then have to deal with the Cele problem—or publicly duck it. The commissioner once provided muscle for Zuma’s rise to the presidency and is now rumoured to be part of a faction aiming to unseat him.

Madonsela found Cele to be guilty of improper and unlawful conduct and maladministration.

“The minister of police [Nathi Mthethwa] should, with the assistance of the national treasury, take urgent steps to ensure that the appropriate action is instituted against all the relevant officials of the SAPS,” Madonsela said. These included Cele.

She also recommended that Mahlangu-Nkabinde take action against her errant officials, with the assistance of the treasury and the public service department.

And while these steps were followed, Madonsela recommended that the police review their needs analysis for the accommodation of their provincial offices and the family violence, child protection and sexual offences units in Durban, which were to be housed in Shabangu’s building.

The public works department should then follow proper procedures to help the police find suitable, cost-effective accommodation, as they are mandated to do.

“The department of public works and the SAPS must ensure that appropriate measures are implemented to prevent a recurrence of contraventions of the relevant procurement legislation and prescripts,” she said.

Invalid

In both Durban and Pretoria Madonsela found that the lease agreements were invalid because their procurement had not complied with constitutional requirements and other regulations.

In both cases she said the police—Cele in particular, although he denies this—had identified the buildings before involving the public works department, which is what they should have done.

Public works then chose, irregularly, to deviate from open tender procedures, negotiating directly with Shabangu and settling on higher than market-value leases, which compromised the police’s stretched operations budget.

Shabangu contacted police and public works officials “and is alleged to have put pressure on them in regard to the finalisation of the procurement process”.

Madonsela emphasised that there was no evidence of criminality in her investigation of Shabangu’s role. “The argument presented by the department of finance was that since we could not conclude that Roux Property Fund [Shabangu’s company] had got the leases because of fraud or through other illegal processes, we could not use the law to red-card him,” she said.

Little has changed in the protector’s report compared with the draft that was leaked before she received the responses of those implicated. Looking at those responses—now dealt with in the final report—it is easy to understand why.

Bheki Cele

Commissioner Cele was at pains to point out that he did not invent the SAPS’s need for a new lease.

“On the contrary, there was a need to either relocate to a new building or construct one long before I came into this department in August 2009,” he told the protector.

One of the main aspects of the provisional report disputed by Cele is that it was he who identified the Transnet building as alternative accommodation for police in Durban.

But Madonsela says two of his subordinates—Generals Hlela and Terblanche—confirmed, independently of each other, that Cele had indeed instructed them to procure the lease of the Transnet building.

She also points to an information note signed by Cele, dated June 28 last year, that apparently confirmed that the Transnet building was identified for leasing.

Cele points a finger at public works as the department responsible for managing the procurement process correctly. “The DPW is solely responsible for the unlawful conclusion of the lease agreement,” he says.



Gwen Mahlangu-Nkabinde


Mahlangu-Nkabinde’s version is contradicted by almost every other player in the leasing saga.

According to Madonsela’s report, the minister explained a mysterious increase in floor space needed by police—which ended up being exactly what was on offer at Shabangu’s building—as being added “to accommodate for non-assignable areas, such as partitions, passages, toilets and common areas”.

“This explanation of the minister is, however, not in line with the needs analysis that was resubmitted by the SAPS,” the protector noted.

The minister claimed that Doidge and his director general, Siviwe Dongwana, did not brief her properly. She denies instructing Dongwana to inform Shabangu’s bankers that the transaction was proceeding.

She refused to answer questions from the public protector, she claimed, because the report on the Pretoria lease showed that Madonsela had already made up her mind.

Roux Shabangu

Shabangu denied applying undue pressure on public works officials, including the director general, or improperly influencing them in the procurement process relating to the Pretoria and Durban leases.

He further denied ever meeting the minister outside her office.

Asked to explain how he became aware of the SAPS’s need for alternative accommodation in Durban, Shabangu indicated that he was informed that the office lease of the provincial police was due to expire and was provided with a “needs analysis” indicating the extent of the required alternative accommodation. It was because he was aware of the extent of the need for alternative accommodation in Durban that his company decided to buy the Transnet building.

But Madonsela noted: “Shabangu’s above explanation is inconsistent with the documentary evidence obtained during the investigation, in terms of which it was found that the first needs analysis, reflecting the extent of the SAPS’s need for alternative accommodation, was only submitted to the DPW on 23 June 2010.

“However, the sale agreement for the Transnet building was concluded with Shabangu on behalf of [Roux Shabangu] on 19 March 2010, three months earlier.”

The Madonsela ‘mix-up’: No closer to the truth

Ten days after Independent Newspapers claimed Thuli Madonsela faced imminent arrest for fraud and corruption there is no clarity on who was pushing the “investigation” and who leaked it.

As the public backlash mounted, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa claimed the public protector was not being investigated.

Radebe cleared Madonsela of wrongdoing relating to work her company did for the justice department while she was a full-time South African Law Reform Commission member. President Jacob Zuma rushed to send out a statement of support.

The newspaper group then produced “irrefutable proof” of its claims — an “information note” showing only that police were given insight, presumably by someone in the justice department, into a justice department file containing a September 2009 state law opinion on Madonsela’s business interests. Police also apparently gave details of departmental payments to her company.

But, significantly, the note was directed to the Hawks’s commercial crime head, Hans Meiring, which suggests senior police interest. The matter is also understood to have been drawn to Hawks boss Anwa Dramat’s attention.

“High-level sources” then leaked the document to a journalist, couched in claims of “imminent arrest” on “fraud and corruption charges”—which the document did not prove.

Was there ever a police probe of Madonsela? Who was behind it? Was Independent Newspapers manipulated? By whom and why?

In seeking to deny that there had been an investigation Hawks spokesperson Macintosh Polela made much of an apparent error in the case number refered to in the information note. It was all an “unfortunate mix-up”, he said. The case number refered to a totally separate case ergo the note did not prove Madonsela had been investigated.

In fact the case number proves nothing of the kind.

Independent Newspapers originally wrote: “The police stumbled upon information on Madonsela while investigating a separate case registered at the Pretoria Central Police Station.” But investigating officer James Hills wrote in the information note: “During the investigation of Pretoria-Central CAS 515/01/2008 at the department of justice and constitutional development, the following came to my attention.”

Clearly this case number is associated with the “separate case”. It was never intended either by the Independent Group or by Hill to refer to the Madonsela probe.

Polela used this confusion to cover the fact that Cabinet had made it politically difficult for police to come clean on the investigation and the leak.

He said: “There was a mix-up when someone read a file for that case. It appears there was a piece of paper which mentioned Madonsela, but I don’t know what that piece of paper was about — As far as I know [the leak] is not being investigated from our side.”

The previous week police headquarters said the South African Police Service would launch a full investigation into the circumstances that led to “media reports —that the public protector is about to be arrested” and would announce the outcome.

Why the arrest claim was leaked days before the release of Madonsela’s second SAPS lease report—and why ministers then smothered the matter—remain smouldering questions.—Craig McKune

The M&G Centre for Investigative Journalism, a non-profit initiative to develop investigative journalism in the public interest, produced this story. All views are ours. See www.amabhungane.co.za for all our stories, activities and sources of funding.

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