A report by the chief director of legal services in Premier Helen Zille’s department in the Western Cape, Lucas Buter, and an opinion by advocate Geoff Budlender was key to the dramatic overturning of a damning provisional report by public protector Thuli Madonsela in her probe into the awarding of a R70-million communication tender.
It was awarded by the Democratic Alliance-run provincial administration and had become a political football after the complaint was lodged by the ANC in the Western Cape. The contract was signed in 2010 and awarded to allow the provincial government to develop a communications strategy.
In her provisional report, Madonsela said the tender was unlawful and should be terminated. It was a tense situation for the DA as Zille had promised to resign as premier if the contract was found to be corrupt.
The provisional report was leaked to the media last month, causing headaches for the premier’s office and the DA. The headlines in the Mail & Guardian said it all: “DA tender ‘invalid’: Scrap it, says public protector”.
But few were prepared for the startling about-turn in her final report, which found nothing unlawful in the awarding of the contract and withdrew the finding that it was invalid.
The ANC’s provincial secretary, Songezo Mjongile, said the party was disappointed by the findings and would take its complaint to the Public Service Commission and the auditor general.
Zille believes the final report has “vindicated” the Western Cape government: “The report shows, above all, that the entire exercise was a storm in a teacup stirred up by our political opponents.” It was a waste of the public protector’s time and cost the South African taxpayer hundreds of thousands of rands at least, which could have been better spent on service delivery, she said.
Madonsela did make four findings about maladministration, fruitless and wasteful expenditure and improper conduct, but she found that the agency, TBWA, would have been awarded the contract in any event.
Buter stated in his report, prepared in response to Madonsela’s provisional report, that the title given to her report, “Yes, we made mistakes” ,was problematic. The title appeared to be the words of the Western Cape government when, in fact, it was the heading of an article in the Sunday Times, which had “admitted incorrect reporting”, he said.
The public protector had also not given sufficient weight to the steps that were taken by the department to ensure proper demand planning and management, he said. The national treasury had issued a guideline on the implementation of demand management to the government, but it had been released only after the contract was awarded.
Unqualified and unbalanced
Therefore, the department disagreed with the “unqualified and unbalanced” finding that there was failure to apply proper demand management, which constituted maladministration.
But the department did agree that the expenditure of R8696 could have been avoided. “However, this is a small amount, required to rectify a bona fide error, and does not warrant the label of ‘fruitless and wasteful’ expenditure,” said Buter.
The department had produced records of the proceedings, as required, which showed that there could be no finding of maladministration in that regard.
The ANC claimed the appointment of special advisers to the premier on the bid evaluation committee was unlawful. The public protector found that former deputy director general Brent Gerber’s appointment of Zille’s special advisers, chief strategist Ryan Coetzee and Gavin Davis, was “improper and unlawful”.
Buter said that this had been neither improper nor a case of maladministration.
The legal opinion given by Budlender for the department probably swung the issue in its favour. “The opinion analyses the applicable legal prescripts, and concludes that none of them prohibits the participation of a special adviser in a bid evaluation committee,” said Buter.
The involvement of the special advisers had no material effect on the outcome of the process, he said.
The public protector had also found there was no evidence that the special advisers acted improperly or tried to manipulate or influence the process in any manner.
“To find, in these circumstances, that the entire process should be deemed invalid or sanctioned with nullity is without foundation and flawed,” Buter said.
The public protector’s spokespeople could not be reached for comment.