DA today 28 February 2011

28 February 2011

A Weekly Newsletter from the Leader of the
Democratic Alliance:

Becoming part of an African Success Story

This week saw public dissatisfaction with Muammar Gaddafi in Libya reach a bloody stand-off between protestors and state security forces. It follows the resignation of Hosni Mubarak after thirty years of authoritarian rule in neighbouring Egypt and the overthrow of Ben Ali in Tunisia. Uprisings have also been recorded in Algeria, Bahrain, Iran, Jordan, Morocco and Yemen.

Some analysts are calling these momentous developments the “fourth wave of democratisation”. The expectation is that dictators in North Africa and across the Middle East will fall like dominoes as the democratic impulse takes hold and spreads.

In truth, there is no telling what the outcome of all of this will be. Establishing a democracy – as we in South Africa know better than most – is a precarious business. Look how many times our own constitutional negotiations stalled over seemingly intractable disagreements, against a backdrop of escalating political violence. There was never any guarantee that we would reach a negotiated democratic settlement. Most often, it seemed as if the odds were stacked against it. Thankfully, in the end, common sense prevailed.

But what many people don’t realise is that, while establishing a democracy is difficult, it is even harder to maintain one. We should think of a new democracy as a fragile sapling. It requires years of nourishment and care in the right conditions to survive and flourish. It is only when its roots are strong enough to anchor it against prevailing anti-democratic winds that we can say it is entrenched.

The tragic history of democracies around the world is that most fail – their constitutions are repealed, overturned by anti-democratic forces or gradually eroded by the party in power. And so it is no surprise that more political scientists are turning their attention to the conditions that enable a democracy to endure, what is called the study of democratic consolidation.

It is an important field with profound relevance to the real world, and particularly to South Africa. This is why I do not believe this line of enquiry should be confined to the hallowed halls of academia. It needs to involve everybody, especially those of us who have made politics our life. After all, the decisions and behaviour of politicians have a profound impact – for better or for worse – on the longevity of a democracy.

Political scientists say that a democracy is consolidated when the party that won power at the first election hands over power peacefully through the ballot box at a subsequent election. All role players – citizens and politicians alike – agree on the rules, abide by them and respect the democratic outcome. Democracy – as one scholar put it – has become “the only game in town.”

We are not yet at this point in South Africa. I say this for two reasons.

Firstly, there has never been an alternation of power at national level. Power has changed hands at local and provincial level – a sign that we are turning a corner of democratic consolidation. But these election defeats were accepted only begrudgingly by the ANC. At this point in time, there is no way of telling whether the ruling party would accept the outcome of a free and fair election if it meant losing control of the national government.

Secondly, we are not yet a consolidated democracy because many voters do not yet understand their rights and responsibilities in a democracy. Accountability – whether through the ballot box or otherwise – is still a foreign concept to most people. A recent Afrobarometer survey found that only one in ten respondents thought that voters should hold MPs to account. Four out of ten agreed that the President should be able to “decide everything”. Less than forty percent of respondents agreed with the statement: “the government is like an employee; the people should be their bosses.”

We need to get to a point soon where democracy is recognised by politicians and voters alike as the only game in town. We cannot wait until a dominant party has eroded the constitution. We have to speed up the process of democratic consolidation before this happens.

I believe that we can do it. This is not blind optimism. There are many encouraging signs that we are moving in the right direction. And I am inspired by developments on the rest our continent. There is much we can learn from the rest of Africa.

Let’s start with economic growth. Most studies show a strong correlation between democracy and GDP per capita – the better off people are, the more political freedom there tends to be. It is not difficult to see why. As more people move out of poverty and become educated, the more likely they are to demand democratic rights and freedoms.

The Economist, which ten years ago labeled Africa “the hopeless continent”, recently noted that six of the world’s ten fastest-growing economies are in sub-Saharan Africa (Angola, Nigeria, Ethiopia, Chad, Mozambique and Rwanda). Overall, sub-Saharan Africa’s growth rate was 5.7% over the last decade, up from only 2.4% over the previous two decades. It is forecast that, over the next ten years, Africa’s economy will grow at 7% -- even faster than China’s -- with more and more people lifted out of poverty as a result.

It is true that most African economies are growing off of a low base and it will take some time before they compete with developed countries in terms of total GDP. But the point is that Africa is moving in the right direction.

South Africa is also moving in the right direction, albeit more slowly, with a growth rate of 3.5% over the last decade. There is much we can do to improve this. Avoiding macro-economic policy contradictions and focusing on job-creating growth above all else is crucial.

To increase our growth rate and create jobs, we also have to learn from places like Kenya where an ICT revolution is driving strong economic growth. The World Bank has calculated that the economy of a developing country grows by 1.38% for every 10% increase in broadband penetration.

And we have to learn from places like Rwanda, where it takes 72 hours to register a business. In South Africa, it can take up to 22 days. It is this kind of red tape that discourages investment and stunts the growth that creates jobs.

Then there is Ethiopia. Once emblematic of “the hopeless continent”, it is now one of the fastest growing economies on the continent (8.4% over the last decade), chiefly as a result of its booming agricultural sector.

If we are to consolidate our democracy, we have to get more people out of poverty and into work.

We also have to overcome the racial divisions that still exist in our politics and in our society. Race, rather than policies and performance, is still a major determinant of voting behaviour. This has to change. A country can never be considered a consolidated democracy if elections are little more than a racial census, because power will never change hands through the ballot box.

Again, there is much we can learn from Africa in this regard. Look at what has just happened in Nigeria, for example. President Goodluck Jonathan won 80% of the vote in a primary held in the Muslim North – the first time a non-Muslim has ever won such an election.

And there are some positive signs that we are transcending race. The DA would never have grown from 300,000 votes in 1994 to nearly 3 million votes in 2009 if people had continued to vote based purely on race, ethnicity and language. The DA would never have won the City of Cape Town and the Western Cape if elections were purely a racial census. Neither would we have won 24 by-elections since 2006 – eight of which were in traditional ANC strongholds. But the real story is unfolding in places like Mkhondo in Mpumalanga. In one voting district, where this is not a single minority voter, the DA won 52% of the vote in the by-election held there last year.

We know that transcending race cannot be left up to the voters alone. It depends on us building a new majority in South Africa. This is why we are working with other parties, in coalitions and in alliances, who share our core values. It is why, through our young leaders programme, we are identifying and training young South Africans from all backgrounds to take up leadership positions in our party. The day the DA elects a black national leader is coming sooner than you think.

Perhaps most importantly of all, we are governing for all the people in the places we govern. According to Professor Paul Collier there are two ways parties can grow in complex plural societies. The easy way is to play the race card. The hard way is to win people’s trust through representing their interests and delivering services for all.

We are choosing the hard way, and it is beginning to yield results. Local authorities across the DA-governed Western Cape were last year ranked number one out of all nine provinces for service delivery in the Universal Household Access to Basic Services or UHABS Index. And, according to an independent survey by the South African Institute of Race Relations, Western Cape municipalities provide greater access for the poor to free basic services like water, sanitation and waste removal than anywhere else.

If we can overcome race and grow our economy, the future of our democracy is bright. I believe we can. I take my inspiration from Ghana – a country that, since independence in 1957, was rocked by military coup after military coup. In 1981 Jerry Rawlings of the National Democratic Congress (NDC) assumed power. He annulled the constitution and banned all political parties, making Ghana a one party state until 1992 when he was elected President. In 2000, John Kufor of the opposing National Patriotic Party (NPP) won the presidential election. He was re-elected in 2004. Then, in 2008, the NDC candidate John Atta Mills beat NPP candidate by 0.46% of the vote in the presidential run-off. And the NPP handed power back to the NDC.

So, since the promulgation of its new constitution in 1992, power has changed hands peacefully in Ghana, not once, but twice. Like Ghana, we must get to a point at which power changes hands peacefully through the ballot box in a free and fair election. And we must do it without first going through three decades of decline. We have to prove that you don’t have to get worse before you get better.


Yours Sincerely,


Helen Zille

Man survives being shot 17 times

Man survives being shot 17 times
2011-02-28 09:50


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Hilda Fourie, Beeld
Johannesburg - A Pretoria man has spent almost half the life of his two-month-old son in hospital after he was shot 17 times by attackers.

One of the alleged attackers who was arrested for the crime had earlier escaped from the Bethanie police station in North West where he was held for the murder of a policeman.

When Johan Groenewald, 38, thinks back to the incident on the premises of a liquor distributor in Silverton, Pretoria, he remembers how he turned around and looked into the barrel of a pistol.

"I cocked my pistol and then all hell broke loose," said Groenewald.

"I remember being shot and I felt how I was shot. I remember shooting back but after that not much."

'Miracle'

Groenewald, from Die Wilgers in eastern Pretoria, was discharged from hospital on Friday when his son, Stehan, was two months old.

His body is covered in marks from where the bullets hit him. His thigh bone was broken and the top of his right ring finger was amputated after it had been hit by a bullet.

"I was shot from the front and the back. They really layed into me," said Groenewald.

"It is a miracle that I survived. I really didn't think I would make it."

A friend of Groenewald's had to accompany a client of his after an event at the liquor distributor's premises at about 04:00 on February 1.

The friend did not turn up and Groenewald, the owner of a security company, helped out.

He heard someone jumping over the wall and a suspicious vehicle driving away, and walked to where he had heard the noises.

Groenewald turned around to find an attacker already standing with his firearm pointed at him.

The next moment the attackers, who presumably were hiding under vehicles on the premises, began shooting at Groenewald.

He was shot in his feet, arms, legs, chest and intestines.

Groenewald injured one of the men.

Suspects released on bail

The injured man was arrested on the premises, confirmed police spokesperson Constable Portia Maleka.

Groenewald said police were looking for this man after he was allegedly involved in the murder of a policeman.

Apart from this man, another man was arrested after the incident.

The two men were released on bail of R2 000.

Police have not yet visited Groenewald to take his statement.

"I am not angry that I was shot but it makes me angry that the two were released on bail," Groenewald said.

Gauteng police spokesperson Captain Pinky Tsinyane said the investigating officer had visited Groenewald in hospital but he had still been unconscious.


- Beeld

Read more on: crime | pretoria

DA to appeal High Court's NPA ruling

DA to appeal High Court's NPA ruling
2011-02-28 13:20




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Johannesburg - The Democratic Alliance will appeal a High Court decision against its bid to compel the National Prosecuting Authority to release documents on why it halted the prosecution of President Jacob Zuma.

Party MP James Selfe said he believed the judge in the case dismissed the application on "erroneous grounds".

"We believe that this matter is of such fundamental constitutional importance that it requires the adjudication of the Supreme Court of Appeal and the Constitutional Court," Selfe said.

The case, he said, had a link to the party's appeal against a High Court ruling against its application to set aside Zuma's appointment of Menzi Simelane as national director of public prosecutions.

"If you consider Simelane's case and this case, the implication is that the president can appoint someone as the NPA head and as that decision is not reviewable, the person can take a decision not to continue with a prosecution."

The DA had wanted to access the documents to support its application to have the decision not to prosecute Zuma set aside.

"The court found that the DA did not have legal standing in that it did not comply with the requirement in our law, to have standing in a matter one must have a direct interest therein," said NPA spokesperson Mthunzi Mhaga.

"This judgment clearly illustrates our view that the matter should not have been dealt with before the courts in the first instance," he said.

"Our strong view has been that South Africa does not, in principle, follow a system of compulsory prosecution.

"The NPA has a discretion whether or not to institute and conduct criminal proceedings or whether to discontinue them."

Corruption charges against Zuma were dropped ahead of the 2009 general election.

Then acting director of public prosecutions, Mokotedi Mpshe, announced that the charges were dropped due to an abuse of process by former head of the directorate of special operations, Leonard McCarthy.

Zuma was facing 16 charges linked to a multibillion-rand government arms deal, including racketeering, money-laundering, corruption and fraud.

Mpshe's announcement ended a long legal battle between the authority and the ruling party's presidential candidate.


- SAPA


Read more on: military | corruption | da | npa | jacob zuma | menzi simelane

How Guptas beat ANC bigwigs to R9bn deal

How Guptas beat ANC bigwigs to R9bn deal
Consortium led by former deputy president walks away from ArcelorMittal deal
Feb 27, 2011 12:04 AM | By STEPHAN HOFSTATTER, MZILIKAZI wa AFRIKA and ROB ROSE

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The Gupta family and President Jacob Zuma's son, Duduzane, scooped a R9-billion empowerment deal ahead of a consortium led by ANC chairman Baleka Mbete.

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Atul Gupta owner of The New Age
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The deal gives Duduzane and the Guptas a stake in global steel giant ArcelorMittal worth more than R3-billion.

The Mandumo Investment Holdings consortium was led by Mbete, who was deputy president at the time, and included Mvelaphanda Holdings chairman Mikki Xayiya and IT mogul Robert Gumede.

Mandumo was the front runner for the deal, on terms considerably more favourable to ArcelorMittal shareholders than the Gupta-Zuma consortium, as it would have brought a cash injection of R375-million, mostly funded by Mvela.

Two Mandumo insiders said ArcelorMittal's head office in London had put pressure on the consortium to include the Guptas in the deal. But, at a meeting soon afterwards, all its members had voted unanimously to walk away.

Gumede and Xayiya declined to comment on the issue.

Mandumo CEO Brian Mosehla, speaking on behalf of Mbete, Mvela and Gumede, denied that the consortium had pulled out of the deal because of the Guptas' involvement.

"The proposed structure resulted in unhealthy returns for all parties involved," he said. "The Mandumo board resolved not to proceed with the transaction."

A source close to Mvela said the economics didn't make sense, especially considering that it would pitch the company against Anglo American, whose subsidiary company Kumba is engaged in a court dispute over prospecting rights worth billions of rands at its Sishen Iron Ore Mine with Imperial Crown Trading (ICT), a company linked to the Gupta-Zuma consortium.

Mvela, a company formed by ANC heavyweight and now Minister of Human Settlements Tokyo Sexwale, is a partner with Anglo American in Coal of Africa Ltd.

"We estimated that the maximum upside for the BEE consortium was $250-million over five years, but a realistic figure was probably $150-million. You'd then have to share it with ICT and the other consortium partners, so you're starting a lengthy legal battle with Anglo for not much reward," said the source.

ArcelorMittal confirmed that it held talks with the Mbete-led consortium that were abandoned, but declined to comment on the role played by the Guptas.

"ArcelorMittal South Africa previously entered into discussions with Mvelaphanda with the objective of concluding a BEE deal," said company spokesman Themba Hlengani.

"However, as often happens during negotiations of this kind, the parties were unable to agree on terms, and discussions did not progress. No contractual commitments were made.

"We cannot say any more on this, since we do not discuss the details of confidential negotiations in public."

ArcelorMittal denied that it had rejected a deal more favourable to shareholders.

"The BEE transaction, as announced by ArcelorMittal South Africa in August, is structured to be in the best interests of shareholders," said Hlengani. "However, it has not yet been finalised or put to shareholders."

hofstatters@sundaytimes.co.za mzilikazi@sundaytimes.co.za

Minister complicit in SAPS deal

Minister complicit in SAPS deal
Mahlangu-Nkabinde backed SAPS lease despite two legal opinions that it was unlawful
Feb 27, 2011 12:04 AM | By MZILIKAZI wa AFRIKA and STEPHAN HOFSTATTER

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Hours after receiving a second damning legal opinion on the SA Police Service's lease with businessman Roux Shabangu, Minister of Public Works Gwen Mahlangu-Nkabinde undertook to honour it.

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WRITTEN PROOF: This internal police memo shows that General Bheki Cele personally authorised funding for the R500-million lease based on negotiations with Roux Shabangu which took place six weeks before the Department of Public Works had even been approached to find office space for the SAPS. Public Protector Thuli Madonsela said this proved that the SAPS's "involvement in the procurement process was improper"
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The second opinion, by Advocate Pat Ellis - highlighted in Public Protector Thuli Madonsela's report this week - reads: "I therefore come to the conclusion that the contract concluded with Roux Property Developers is unlawful and therefore invalid."

Shabangu's company secured the 10-year, R500-million lease of its Sanlam Middestad building in Pretoria, which will house various SAPS units, including the top brass, without going to tender.

Mahlangu-Nkabinde also ignored another report, commissioned by her predecessor, Geoff Doidge, from Cliffe Dekker Hofmeyr, which advised that "a court would likely declare the lease agreement to be invalid".

It adds: "We advise the department to institute an urgent high court application seeking the judicial review and setting aside of its decision to enter into the lease agreement."

Addressing the media in Pretoria on Tuesday at the release of the findings of her investigation, assisted by the Special Investigating Unit into the lease, Madonsela said the minister's response "was inconsistent with the findings of the internal Department of Public Works inquiry and legal opinions obtained from two independent senior counsel".

"The minister's response on the validity of the procurement process could further not be substantiated by evidence submitted and information obtained during the investigation."

The investigation also found that Mahlangu-Nkabinde's decision "to proceed with an invalid lease agreement was improper and unlawful".

"Any expenditure incurred to date, or to be incurred as the result of the implementation of the lease would amount to irregular expenditure."

The minister also disregarded an undertaking by her office to the Public Protector, dated August 10 2010, that "the implementation of the lease agreement shall be suspended pending the outcome of the investigations".

Madonsela recommended that Mahlangu-Nkabinde explain to cabinet "the reckless manner" in which her department dealt with taxpayers' money.

The minister and her department have over the past three weeks failed to answer detailed questions from the Sunday Times.

Yesterday the minister blamed her spokesman, Obakeng Modikoe, for not forwarding them to her: "I have not received the questions. You can do yourself a favour by having some manners," she said.

Asked whether he had forwarded the questions, Modikoe said: "I refuse to answer that now."

Like Cliffe Dekker Hofmeyr's findings and Madonsela's report recommends that Sam Vukela, public works' then acting director-general, and other senior officials "that acted in contravention of the law, policy and other prescripts in respect of the procurement processes" should face disciplinary action.


mzilikazi@sundaytimes.co.za hofstatters@sundaytimes.co.za

President Zuma stop corruption: Suspend Bheki Cele and lay charges now!

Centre for Law and Social Justice
»President Zuma stop corruption: Suspend Bheki Cele and lay charges now!


Advocate Thuli Madonsela, the Public Protector has said that “General” Bheki Cele’s (SAPS head) conduct in a R500 million rent deal with his friend Roux Shabangu was “improper, unlawful and amounted to maladministration”.

President Jacob Zuma must suspend Cele immediately and ask the Special Investigations Unit to lay charges. This country cannot live with another police chief who shouts loudly about crime and then dabbles in its shady world.

Leadership from the President and Parliament is required immediately NOT tomorrow otherwise we cannot take their words on corruption and crime seriously. The corrupt SAPS rent deal like the arms deal is a test of our Executive and legislature. Will our country have a lawless executive and a toothless Parliament that rubber stamps corruption, or, will we have an open, accountable and ethical government that puts peoples’ needs first?

This case has already involved an attempted cover-up: the unlawful detention of Mzilikazi wa Afrika, the Sunday Times journalist who broke the story.

There can be little doubt that were the Secrecy Bill ever to become law in its current form then the Public Protector’s report would have never seen the light of day.

This post contains Public Protector Advocate Thuli Madonsela’s speech on the corrupt SAPS rent deal at Parliament, the Times report (23 February 2011) and its editorial.

Zackie Achmat

Address by the Public Protector, Adv Thuli Madonsela, during a media briefing on the release of the SAPS lease report held at the Sheraton Hotel in Pretoria on Tuesday, February 22, 2011

Chairperson of the National Press Club, Mr Yusuf Abraham;
Deputy Chairperson of the National Press Club, Mr Jos Charle;
Members of the Press Club and the other media representatives present;
Deputy Public Protector Adv Mamiki Shai
SIU Head, Mr Willie Hofmeyr
PPSA CEO Themba Mthethwa;
The Investigation Team;
Ladies and gentlemen;

I am honored to present to the public, Against the Rules: Report of the Public Protector on an investigation in to allegations of improper conduct by the South African Police Service (SAPS) and the Department of Public Works (DPW) relating to the procurement of a lease agreement for a new SAPS Headquarters in Pretoria. The allegations and report also deal with the legality of the lease in question.

I am further deeply humbled by the media and nation’s interest in this and other matters that my office deals with on a day to day basis in pursuit of its constitutional mandate. My gratitude particularly goes to the Press Club for hosting this event and its ongoing support.

I would also like to express my sincere gratitude to all the parties that have cooperated during this investigation, particularly SAPS, Department of Public Works (DPW), the National Treasury, the Special Investigations Unit (SIU), the complainants, Mr Roux Shabangu and the Investigation Team, among others.

I must also highlight that this report relates to the Pretoria lease only. The investigation relating to the Durban lease in still underway and the public will be kept up to date with developments and later the outcome as time goes on.

Chairperson;

In a bid to ensure accountability, good governance and integrity in all state affairs, among other things, the architects of our constitutional democracy saw it befitting that there should be institutions that keep the state in check by scrutinizing its administrative conduct, thereby ensuring that there is no abuse of power and state resources, that services are delivered responsively and that the state is accountable at all times.

My office, the Public Protector, is one of those institutions established by Chapter 9 of the Constitution of the Republic to support and strengthen this constitutional democracy.

To achieve this, I make use of the power and responsibility bestowed upon me by the Constitution and as regulated by national legislation, to investigate any conduct in state affairs that is alleged or suspected to be improper or to result in any impropriety or prejudice; report on that conduct and take appropriate remedial action.

Remarking on the role played by oversight institutions such as my office on good governance and checks and balances during the International Ombudsman Conference in Durban ten years ago, former President, Nelson Mandela eloquently said the following:

“Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to the scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order.

An essential part of that constitutional architecture is those state institutions supporting democracy. Among those are the Public Protector, the Human Rights Commission, the Auditor General, the Independent Electoral Commission, the Commission of Gender Equality, the Constitutional Court and others.”

He added:

“It was, to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my Government and the Office and judged against. One of the first judgments of our Constitutional Court, for example, found that I, as President, administratively acted in a manner they would not condone. From that judgment my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. Similarly, the Public Protector (Ombudsman) had on more than one occasion been required to adjudicate in such matters.”

These statements sum up the role of institutions such as the Public Protector and the responsibility of the state in helping such institutions live up to their mandate of supporting and strengthening constitutional democracy.

Ladies and gentlemen;

On 2 August 2010, the Public Protector received complaints from Mr Paul Hoffman of the Institute for Accountability in Southern Africa and Mr Pieter Groenewald of the Freedom Front Plus to investigate alleged improper procurement of the lease for office accommodation for the SAPS in the Sanlam Middestad building in the Pretoria CBD. These complaints came as a result of a newspaper article published the day before alleging improper conduct and maladministration by the National Commissioner of the SAPS and the DPW.

At the centre of the complaints was the alleged non-compliance with tender procedures in the procurement of two buildings in Pretoria and Durban for use as accommodation for the SAPS. My office investigated the matter with the assistance of the Special Investigating unit.

Ours was simply to determine: What happened? What should have happened; and whether there was a discrepancy between what happened and what should have happened. We fin ally had to determine if such discrepancy, if any constitution improper conduct, maladmi8nistration, abuse of power or any of the violations envisaged in the Constitution and the Public Protector Act. We also had to take appropriate remedial action as envisaged in section 182(3) of the Constitution. This is how the investigation unfolded.

On 3 August 2010, I requested the National Commissioner of SAPS and the Director-General of DPW not to proceed with the implementation of the lease pending the finalisation of the investigation

On 10 August 2010 both SAPS and DPW wrote back to me undertaking to comply with the request. DPW further advised that parties had been informed that the implementation of the leases in question had been suspended pending the out come of an internal investigation and the investigation of the Public Protector and the SIU.

On 11 and 19 October 2010, the Director-General of DPW informed the National Commissioner of SAPS that the lease agreement between the DPW and Roux Property Fund (RPF) in respect to the Sanlam Middestad building was invalid. This was on the basis of the findings of an internal inquiry and independent legal advise obtained.

On 25 October 2010, I issued a preliminary report on the investigation and informed the National Police Commissioner of the SAPS of my concurrence with the decision of the DPW to commence with an entirely new procurement process. This report was presented to the Executive Authorities and accounting officers of the SAPS and the DPW.

On 31 October 2010, Ms Gwen Mahlangu-Nkabinde replaced Mr Geoff Doidge as the Minister of Public Works.

Shortly after her assumption of duty, Minister Mahlangu-Nkabinde’s office obtained informal advice from the Office of the State Attorney, indicating that the lease was enforceable. This advice was however given subject to a further legal opinion to be obtained from senior counsel at the request of the Minister’s office.

The opinion of senior council dated 22 November 2010, concluded that the contract between the DPW and RPF was unlawful, thereby rendering the lease agreement invalid.

On 22 November 2010, the DPW advised Nedbank, the financiers of RPF, that it was continuing with the lease. This was followed by a public pronouncement by Minister Mahlangu-Nkabinde that the DPW was continuing with the implementation of the lease. On the same day, the Director-general of the DPW was suspended.

Our investigation was conducted over a period of five months. It included interviews with officials from the SAPS including National Commissioner, officials from the DPW and Mr Roux Shabangu of the RPF. Voluminous documentation relating to the procurement was perused and relevant provisions of the Constitution, the PFMA, Treasury Regulations and other procurement prescripts were considered and applied.

Copies of the draft report were distributed to all relevant parties and responses to the draft were submitted and considered for purposes of the final report.

My findings in full are contained in the full report that, I believe, has already been circulated to you. I will quickly zoom into my specific findings in relations to the SAPS and the DPW.

Specific Findings Relating to SAPS

The lease agreements were signed between RPF and the DPW and not by the National Commissioner of the SAPS, as was alleged.

Although the SAPS did not sign the lease agreement, its involvement in the procurement process was improper, as it proceeded beyond the demand management phase and it further failed to implement proper controls, as required by the PFMA and relevant procurement prescripts.

The SAPS failed to comply with section 217 of the Constitution, the relevant provisions of the PFMA, Treasury Regulations and supply chain management rules and policies. This failure amounted to improper conduct and maladministration.

The conduct of the accounting officer of the SAPS was in breach of those duties and obligations incumbent upon him in terms of section 217 of the Constitution, section 38 of the PFMA and the relevant Treasury Regulations. These provisions require from an accounting officer to ensure that goods and services are procured in accordance with a system that fair, equitable, transparent, competitive and cost effective. This conduct was improper, unlawful and amounted to maladministration.

On the evidence available it could not be found that an improper relationship between the preferred service provider (RPF) and the SAPS motivated the deviation from required tender procedures.

Specific Findings Relating to DPW

The procurement by the DPW of the lease was not in accordance with a system that is cost effective and competitive, as is required by section 217 of the Constitution, the relevant provisions of the PFMA, Treasury Regulations and supply chain management rules and policies. This failure amounted to improper conduct and maladministration.
The conduct of the accounting officer of the DPW was in breach of those duties and obligations incumbent upon him in terms of section 217 of the Constitution, section 38 of the PFMA and the relevant Treasury Regulations. These provisions require from an accounting officer to ensure that goods and services are procured in accordance with a system that fair, equitable, transparent, competitive and cost effective. This conduct was improper, unlawful and amounted to maladministration.

The process that led to the conclusion by the DPW of the lease agreements with RPF was fatally flawed, in various respects, including non-compliance with prescribed procurement procedures such as ensuring a competitive bid process or justifying the deviations in the prescribed manner. This rendered the process unlawful and further constituted improper conduct and maladministration.

The lease agreement should not have been entered into as it did not comply with the validity requirements of the Constitution, applicable legislation and prescripts. The lease agreements entered by the DPW and RPF are therefore invalid.

The decision of the DPW to proceed with the implementation of the lease agreement in the face of considered legal advice from two senior counsel to the contrary, particularly the opinion procured on 22 November 2010 under the leadership of the current Minister of Public Works, was in breach of its fiduciary duties and the requirements of good governance in terms of the PFMA, and amounted to maladministration.

The reckless manner in which the DPW dealt with public funds in this case, particularly:
the failure to subject the lease agreement to judicial review, as advised by senior counsel and by implementing the lease agreement despite further legal advice from separate senior counsel to the contrary; andreneging on the undertaking given to the Public Protector not to implement the lease until the investigation was complete, was improper and fell short of the requirements of good administration.

Remedial action to be taken, as envisaged in section 182(1)(c) of the Constitution, is the following:
The National Treasury should urgently review the purported lease agreement between the DPW and RPF in order to determine if the contract can be terminated forthwith.

The National Treasury must determine whether any irregular or fruitless and wasteful expenditure was incurred by the SAPS and/or the DPW in respect of the procurement process and other matters related thereto and take appropriate action, where applicable.

The Cabinet must at its first meeting convened after the date of publication of this report request an explanation from the Minister of Public Works on:

The reasons for the decision to implement the lease agreement with RPF, despite the DPW being provided with a legal opinion of independent senior counsel, soon after her appointment, advising to the contrary;

The justification for proceeding with the implementation of the disputed lease, prior to the finalisation of the investigation by the Public Protector, and despite senior counsel opinions and the DPW’s previous undertakings to the contrary.
The Secretary of Cabinet must advise the Public Protector of the outcome of the deliberations referred to in paragraph (c) above and the resolutions taken within 10 days from the date of the Cabinet meeting.

The Minister of Public Works with the assistance of the National Treasury should take urgent steps to ensure that the appropriate action is instituted against the relevant DPW officials that acted in contravention of the law, policy and other prescripts in respect of the procurement processes referred to in this report.

The DPW must ensure that appropriate measures are implemented to prevent a reoccurrence of contraventions of the relevant procurement legislation and prescripts.

The Minister of Police should, with the assistance of the National Treasury, take urgent steps to ensure that the appropriate action is instituted against the appropriate SAPS officials that acted in contravention of the law, policy and other prescripts in respect of the procurement processes referred to in this report.

The SAPS must ensure that appropriate measures are implemented to prevent a reoccurrence of contraventions of the relevant procurement legislation and prescripts.

The National Treasury should develop and introduce measures that will prevent a recurrence of a situation where client departments of the DPW infringe on the functional areas of the DPW in respect of the procurement of leased accommodation.

Further to these, the National Treasury, the Ministers of Public Works and Police, the DPW and the SAPS must submit action plans and progress reports to the Public Protector in respect of the implementation of the remedial action referred to above.

What are my expectations from the organs of state involved? I am confident the organs of state in question will deal with my findings and remedial action contained in this report in the spirit of section 181(3) of the Constitution. This is in line with global jurisprudence on the status of the report of an Ombudsman. Indeed the Minister of finance has already endorsed the findings in the Draft Report wholly.

My confidence in the state’s ability and commitment to do the right thing is further bolstered by President’s J G Zuma’s remarks during the state of the nation address where he stated.

“We have a well-established institutions that support democracy and protect the rights of citizens, such as the Office of the Public Protector, the South African Human Rights Commission, the Office of the Auditor General, the Commission on the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Gender Commission”

Thank you.

Adv TN Madonsela
Public Protector of the Republic of South Africa
ENDS


R500m SAPS HQ lease deal unlawful

Feb 22, 2011 10:22 PM | By CHANDRÉ PRINCE and AMUKELANI CHAUKE
National police commissioner Bheki Cele and Public Works Minister Gwen Mahlangu-Nkabinde have fared the worst in the Public Protector ‘s damning report on the R500-million police HQ lease deal.

A five-month investigation by advocate Thuli Madonsela’s office details shocking findings about the conduct of South Africa’s top cop, and how his “improper and unlawful” conduct was central to the signing of the lease.

Flanked by Special Investigating Unit head Willie Hofmeyr, Madonsela revealed how Cele authorised funding for leasing the Middestad building in central Pretoria from property mogul Roux Shabangu.

The Middestad building he wanted to lease as his new police headquarters is next door to the current headquarters.

“The conduct of the accounting officer [Cele] … in respect of the procurement of the lease was improper and unlawful,” wrote Madonsela in her 91-page report.

Madonsela’s findings vindicate the Sunday Times reports that exposed Cele’s involvement in the deal. She praised the newspaper’s “courage” for exposing the deal.

Cele has repeatedly denied any wrongdoing, claiming that he merely signed the SA Police Service needs analysis. Yesterday, he released a statement saying that he was “vindicated” by the report.

But Madonsela found that:

Lease negotiations between the Department of Public Works and Shabangu were already at an advanced stage when the police gave their needs analysis to the department;
The police first identified the building and then adjusted the needs analysis to correspond to, or “retrofit”, the specifications of Middestad, which Shabangu had not yet bought;
The leasing of Middestad was not budgeted for in the police leasing or capital works budget;
The lease was not cost-effective;
Public Works failed to record its reasons for deviating from the prescribed tendering processes; and
The terms of the lease between Public Works and Shabangu were not approved by the Special National Bid Adjudication Committee, which they should have been.
Said the report: “The conduct of the accounting officers of the Department of Public Works and of the SAPS [Cele] . was improper and unlawful.

“It was evident throughout the investigation that a number of the officials interviewed expressed their reservations with the process followed by the SAPS to procure the lease. However, they were reluctant to raise their concerns with their superiors due to the culture of the SAPS in terms of which instructions are followed and not questioned,” the report said.

Former deputy national police commissioner Hamilton Hlela said in his interview with Madonsela that he was “unwilling to question the decisions and instructions of the national commissioner [Cele]“.

In his statement, Cele said: “The Public Protector not only stops at finding that General Cele did not sign the lease for Middestad Sanlam Centre, she goes further and vindicates General Cele’s widely disregarded protestations that businessman Roux Shabangu, the owner of Middestad Sanlam Centre, was a stranger to him up until their meeting in June 2010, when Middestad Sanlam Centre had already been selected by the Department of Public Works as the building that the SAPS were going to move into.

“General Cele will now be consulting his lawyers to explore what avenues are available to him as he seeks redress over these allegations that have caused him and his family so much pain and suffering over the past five months or so.”

In her report, Madonsela said that Mahlangu-Nkabinde ignored the opinion of two senior advocates and sealed the deal with Shabangu on November 22, the day that senior advocate Pat Ellis told Mahlangu-Nkabinde that the lease was unlawful.

Mahlangu-Nkabinde disregarded an undertaking made by her predecessor, Geoff Doidge, who had told the police that he would not finalise the lease pending the outcome of Madonsela’s investigation.

An internal Public Works inquiry in October, ordered by Doidge , also found the deal to be “invalid”.

But President Jacob Zuma fired Doidge in his cabinet reshuffle in early November. Shortly after she took office, Mahlangu-Nkabinde’s staff told Nedbank, Shabangu’s financier, that the department would honour the lease and the bank should release funds to Shabangu. Mahlangu-Nkabinde announced in December that the deal would go ahead.

Mahlangu-Nkabinde suspended her director-general, Siviwe Dongwana, on December 8 – the day he was due to be interviewed by Madonsela for her report.

Describing Public Works’ involvement in the deal as “reckless”, Madonsela said Mahlangu-Nkabinde must explain her decisions to the cabinet.

Madonsela said further investigations will determine whether anyone will be criminally charged or will have to reimburse the state.

Finance Minister Pravin Gordhan, commenting on a draft of the Madonsela report, had harsher words: “The National Treasury supports the further review of the lease agreement as a matter of urgency. This may include, if necessary, the initiation of criminal prosecution.”

The million-dollar question, Madonsela said, was: “How did Shabangu get involved with [the police]? His own evidence was not very helpful.”

She said the findings of a subsequent investigation into another lease deal between the police and Shabangu, for a building in Durban, to be released in a month, would determine whether any of those involved would be criminally charged.

Opposition parties yesterday again called for Cele’s head – and that of Mahlangu-Nkabinde.

Freedom Front Plus’s Pieter Groenewald – who, along with Paul Hoffman, the director of the Institute for Accountability in Southern Africa, lodged complaints against Cele with Madonsela – yesterday called on Zuma to act swiftly.

“If President Zuma is serious about his comments that corruption should be eradicated, he should fire both [Cele] and the minister because he appointed both. If he does not do it, he makes a mockery of clean administration and promotes corruption,” Groenewald said.

“More questions are arising about the firing of the former minister of public works, Geoff Doidge, who stopped the process to wait for the report of the Pubic Protector. The Freedom Front Plus will, after carefully studying the report, decide whether criminal charges will be laid.”

Hoffman said Cele should “be redeployed in politics, which is where he belongs”.

He said the Treasury should have no difficulty in cancelling the lease because regulations were clearly violated.

Hoffman criticised Mahlangu-Nkabinde’s failure to heed the advice of her advocates.

Shabangu said his lease agreement with the police was still valid.

THE STORY SO FAR

On August 1 last year, the Sunday Times exposed details of how Police Commissioner Bheki Cele ignored tender procedures when he signed a “dodgy” R500-million lease with billionaire businessman Roux Shabangu for a new police headquarters in Pretoria.

Three days later, Cele denied signing a lease agreement, and claimed he only signed a “needs assessment”. At a press conference, he also labelled Sunday Times reporter Mzilikazi wa Afrika, who broke the story, a “dodgy journalist”.

On August 7, the Sunday Times quoted the Public Protector confirming its “biggest probe ever” into the lease after a complaint was laid by the Institute for Accountability in Southern Africa and the Freedom Front Plus.

On September 5, three police generals, who said they were forced to resign from the force over the lease agreement, told the Sunday Times that Cele “lied” to parliament when he said his role ended with just identifying the police’s accommodation needs. They said Cele led the drive to relocate the police headquarters.

On October 19, following an internal inquiry and independent legal advice, the Department of Public Works informed Cele that the lease agreement with Shabangu was invalid.

On November 22, new Public Works Minister Gwen Mhlangu-Nkabinde advised Nedbank, Shabangu’s financier, that the she would honour the deal.

Yesterday, Public Protector Thuli Madonsela announced that the deal was unlawful.

Madonsela report: Will Zuma have guts to do the right thing?
The Editor, The Times Newspaper

The Times Editorial: Public Protector Thuli Madonsela has finally released her report on the leasefor the police’s Pretoria headquarters.

And she has confirmed what many suspected – that there was something untoward in the way in which the new headquarters building was acquired.

At the release of her report yesterday, Madonsela implicated just about every department involved in the deal, particularly Public Works and the police, both of which she found guilty of “improper conduct and maladministration” and of flouting the Treasury regulations that govern procurement.

As she sat before the media, Madonsela offered us a moment of integrity, honesty and courage – at potentially great cost to her office and herself.

Her report is clear in its condemnation of the misuse of state authority and of the subversion of procurement processes.

But her strongest criticism was reserved for Public Works Minister Gwen Mahlangu-Nkabinde, who signed the lease for the Pretoria offices with Roux Property Fund against the advice of senior legal counsel.

Madonsela described the way in which the department dealt with public funds as “reckless”.

Her report has vindicated the media houses, particularly our sister publication, the Sunday Times, which exposed the headquarters deal last year.

But it is what follows Madonsela’s revelations that is of vital importance. President Jacob Zuma’s response to her damning findings will be a watershed moment in his term in office. His response to the exposing of Cele and Mahlangu-Nkabinde must be public and swift. This is no time for an “elegant” solution.

Abstaining from a very public response will give credence to what many critics have said – that the president merely pays lip service to good governance, fighting corruption and accountability. And his silence would negate the very courageous work done by Madonsela.

ENDS

Previous Writing Rights article: Corruption and the ANC
.This entry was posted on February 24, 2011, 10:47 am and is filed under Active Citizenship, Corporate lawlessness, Corruption, Law and Constitutionalism, Political parties, Social Justice Coalition, South African politics. You can follow any responses to this entry through RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.

President Zuma stop corruption: Suspend Bheki Cele and lay charges now!

Centre for Law and Social Justice
»President Zuma stop corruption: Suspend Bheki Cele and lay charges now!


Advocate Thuli Madonsela, the Public Protector has said that “General” Bheki Cele’s (SAPS head) conduct in a R500 million rent deal with his friend Roux Shabangu was “improper, unlawful and amounted to maladministration”.

President Jacob Zuma must suspend Cele immediately and ask the Special Investigations Unit to lay charges. This country cannot live with another police chief who shouts loudly about crime and then dabbles in its shady world.

Leadership from the President and Parliament is required immediately NOT tomorrow otherwise we cannot take their words on corruption and crime seriously. The corrupt SAPS rent deal like the arms deal is a test of our Executive and legislature. Will our country have a lawless executive and a toothless Parliament that rubber stamps corruption, or, will we have an open, accountable and ethical government that puts peoples’ needs first?

This case has already involved an attempted cover-up: the unlawful detention of Mzilikazi wa Afrika, the Sunday Times journalist who broke the story.

There can be little doubt that were the Secrecy Bill ever to become law in its current form then the Public Protector’s report would have never seen the light of day.

This post contains Public Protector Advocate Thuli Madonsela’s speech on the corrupt SAPS rent deal at Parliament, the Times report (23 February 2011) and its editorial.

Zackie Achmat

Address by the Public Protector, Adv Thuli Madonsela, during a media briefing on the release of the SAPS lease report held at the Sheraton Hotel in Pretoria on Tuesday, February 22, 2011

Chairperson of the National Press Club, Mr Yusuf Abraham;
Deputy Chairperson of the National Press Club, Mr Jos Charle;
Members of the Press Club and the other media representatives present;
Deputy Public Protector Adv Mamiki Shai
SIU Head, Mr Willie Hofmeyr
PPSA CEO Themba Mthethwa;
The Investigation Team;
Ladies and gentlemen;

I am honored to present to the public, Against the Rules: Report of the Public Protector on an investigation in to allegations of improper conduct by the South African Police Service (SAPS) and the Department of Public Works (DPW) relating to the procurement of a lease agreement for a new SAPS Headquarters in Pretoria. The allegations and report also deal with the legality of the lease in question.

I am further deeply humbled by the media and nation’s interest in this and other matters that my office deals with on a day to day basis in pursuit of its constitutional mandate. My gratitude particularly goes to the Press Club for hosting this event and its ongoing support.

I would also like to express my sincere gratitude to all the parties that have cooperated during this investigation, particularly SAPS, Department of Public Works (DPW), the National Treasury, the Special Investigations Unit (SIU), the complainants, Mr Roux Shabangu and the Investigation Team, among others.

I must also highlight that this report relates to the Pretoria lease only. The investigation relating to the Durban lease in still underway and the public will be kept up to date with developments and later the outcome as time goes on.

Chairperson;

In a bid to ensure accountability, good governance and integrity in all state affairs, among other things, the architects of our constitutional democracy saw it befitting that there should be institutions that keep the state in check by scrutinizing its administrative conduct, thereby ensuring that there is no abuse of power and state resources, that services are delivered responsively and that the state is accountable at all times.

My office, the Public Protector, is one of those institutions established by Chapter 9 of the Constitution of the Republic to support and strengthen this constitutional democracy.

To achieve this, I make use of the power and responsibility bestowed upon me by the Constitution and as regulated by national legislation, to investigate any conduct in state affairs that is alleged or suspected to be improper or to result in any impropriety or prejudice; report on that conduct and take appropriate remedial action.

Remarking on the role played by oversight institutions such as my office on good governance and checks and balances during the International Ombudsman Conference in Durban ten years ago, former President, Nelson Mandela eloquently said the following:

“Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to the scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order.

An essential part of that constitutional architecture is those state institutions supporting democracy. Among those are the Public Protector, the Human Rights Commission, the Auditor General, the Independent Electoral Commission, the Commission of Gender Equality, the Constitutional Court and others.”

He added:

“It was, to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my Government and the Office and judged against. One of the first judgments of our Constitutional Court, for example, found that I, as President, administratively acted in a manner they would not condone. From that judgment my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. Similarly, the Public Protector (Ombudsman) had on more than one occasion been required to adjudicate in such matters.”

These statements sum up the role of institutions such as the Public Protector and the responsibility of the state in helping such institutions live up to their mandate of supporting and strengthening constitutional democracy.

Ladies and gentlemen;

On 2 August 2010, the Public Protector received complaints from Mr Paul Hoffman of the Institute for Accountability in Southern Africa and Mr Pieter Groenewald of the Freedom Front Plus to investigate alleged improper procurement of the lease for office accommodation for the SAPS in the Sanlam Middestad building in the Pretoria CBD. These complaints came as a result of a newspaper article published the day before alleging improper conduct and maladministration by the National Commissioner of the SAPS and the DPW.

At the centre of the complaints was the alleged non-compliance with tender procedures in the procurement of two buildings in Pretoria and Durban for use as accommodation for the SAPS. My office investigated the matter with the assistance of the Special Investigating unit.

Ours was simply to determine: What happened? What should have happened; and whether there was a discrepancy between what happened and what should have happened. We fin ally had to determine if such discrepancy, if any constitution improper conduct, maladmi8nistration, abuse of power or any of the violations envisaged in the Constitution and the Public Protector Act. We also had to take appropriate remedial action as envisaged in section 182(3) of the Constitution. This is how the investigation unfolded.

On 3 August 2010, I requested the National Commissioner of SAPS and the Director-General of DPW not to proceed with the implementation of the lease pending the finalisation of the investigation

On 10 August 2010 both SAPS and DPW wrote back to me undertaking to comply with the request. DPW further advised that parties had been informed that the implementation of the leases in question had been suspended pending the out come of an internal investigation and the investigation of the Public Protector and the SIU.

On 11 and 19 October 2010, the Director-General of DPW informed the National Commissioner of SAPS that the lease agreement between the DPW and Roux Property Fund (RPF) in respect to the Sanlam Middestad building was invalid. This was on the basis of the findings of an internal inquiry and independent legal advise obtained.

On 25 October 2010, I issued a preliminary report on the investigation and informed the National Police Commissioner of the SAPS of my concurrence with the decision of the DPW to commence with an entirely new procurement process. This report was presented to the Executive Authorities and accounting officers of the SAPS and the DPW.

On 31 October 2010, Ms Gwen Mahlangu-Nkabinde replaced Mr Geoff Doidge as the Minister of Public Works.

Shortly after her assumption of duty, Minister Mahlangu-Nkabinde’s office obtained informal advice from the Office of the State Attorney, indicating that the lease was enforceable. This advice was however given subject to a further legal opinion to be obtained from senior counsel at the request of the Minister’s office.

The opinion of senior council dated 22 November 2010, concluded that the contract between the DPW and RPF was unlawful, thereby rendering the lease agreement invalid.

On 22 November 2010, the DPW advised Nedbank, the financiers of RPF, that it was continuing with the lease. This was followed by a public pronouncement by Minister Mahlangu-Nkabinde that the DPW was continuing with the implementation of the lease. On the same day, the Director-general of the DPW was suspended.

Our investigation was conducted over a period of five months. It included interviews with officials from the SAPS including National Commissioner, officials from the DPW and Mr Roux Shabangu of the RPF. Voluminous documentation relating to the procurement was perused and relevant provisions of the Constitution, the PFMA, Treasury Regulations and other procurement prescripts were considered and applied.

Copies of the draft report were distributed to all relevant parties and responses to the draft were submitted and considered for purposes of the final report.

My findings in full are contained in the full report that, I believe, has already been circulated to you. I will quickly zoom into my specific findings in relations to the SAPS and the DPW.

Specific Findings Relating to SAPS

The lease agreements were signed between RPF and the DPW and not by the National Commissioner of the SAPS, as was alleged.

Although the SAPS did not sign the lease agreement, its involvement in the procurement process was improper, as it proceeded beyond the demand management phase and it further failed to implement proper controls, as required by the PFMA and relevant procurement prescripts.

The SAPS failed to comply with section 217 of the Constitution, the relevant provisions of the PFMA, Treasury Regulations and supply chain management rules and policies. This failure amounted to improper conduct and maladministration.

The conduct of the accounting officer of the SAPS was in breach of those duties and obligations incumbent upon him in terms of section 217 of the Constitution, section 38 of the PFMA and the relevant Treasury Regulations. These provisions require from an accounting officer to ensure that goods and services are procured in accordance with a system that fair, equitable, transparent, competitive and cost effective. This conduct was improper, unlawful and amounted to maladministration.

On the evidence available it could not be found that an improper relationship between the preferred service provider (RPF) and the SAPS motivated the deviation from required tender procedures.

Specific Findings Relating to DPW

The procurement by the DPW of the lease was not in accordance with a system that is cost effective and competitive, as is required by section 217 of the Constitution, the relevant provisions of the PFMA, Treasury Regulations and supply chain management rules and policies. This failure amounted to improper conduct and maladministration.
The conduct of the accounting officer of the DPW was in breach of those duties and obligations incumbent upon him in terms of section 217 of the Constitution, section 38 of the PFMA and the relevant Treasury Regulations. These provisions require from an accounting officer to ensure that goods and services are procured in accordance with a system that fair, equitable, transparent, competitive and cost effective. This conduct was improper, unlawful and amounted to maladministration.

The process that led to the conclusion by the DPW of the lease agreements with RPF was fatally flawed, in various respects, including non-compliance with prescribed procurement procedures such as ensuring a competitive bid process or justifying the deviations in the prescribed manner. This rendered the process unlawful and further constituted improper conduct and maladministration.

The lease agreement should not have been entered into as it did not comply with the validity requirements of the Constitution, applicable legislation and prescripts. The lease agreements entered by the DPW and RPF are therefore invalid.

The decision of the DPW to proceed with the implementation of the lease agreement in the face of considered legal advice from two senior counsel to the contrary, particularly the opinion procured on 22 November 2010 under the leadership of the current Minister of Public Works, was in breach of its fiduciary duties and the requirements of good governance in terms of the PFMA, and amounted to maladministration.

The reckless manner in which the DPW dealt with public funds in this case, particularly:
the failure to subject the lease agreement to judicial review, as advised by senior counsel and by implementing the lease agreement despite further legal advice from separate senior counsel to the contrary; andreneging on the undertaking given to the Public Protector not to implement the lease until the investigation was complete, was improper and fell short of the requirements of good administration.

Remedial action to be taken, as envisaged in section 182(1)(c) of the Constitution, is the following:
The National Treasury should urgently review the purported lease agreement between the DPW and RPF in order to determine if the contract can be terminated forthwith.

The National Treasury must determine whether any irregular or fruitless and wasteful expenditure was incurred by the SAPS and/or the DPW in respect of the procurement process and other matters related thereto and take appropriate action, where applicable.

The Cabinet must at its first meeting convened after the date of publication of this report request an explanation from the Minister of Public Works on:

The reasons for the decision to implement the lease agreement with RPF, despite the DPW being provided with a legal opinion of independent senior counsel, soon after her appointment, advising to the contrary;

The justification for proceeding with the implementation of the disputed lease, prior to the finalisation of the investigation by the Public Protector, and despite senior counsel opinions and the DPW’s previous undertakings to the contrary.
The Secretary of Cabinet must advise the Public Protector of the outcome of the deliberations referred to in paragraph (c) above and the resolutions taken within 10 days from the date of the Cabinet meeting.

The Minister of Public Works with the assistance of the National Treasury should take urgent steps to ensure that the appropriate action is instituted against the relevant DPW officials that acted in contravention of the law, policy and other prescripts in respect of the procurement processes referred to in this report.

The DPW must ensure that appropriate measures are implemented to prevent a reoccurrence of contraventions of the relevant procurement legislation and prescripts.

The Minister of Police should, with the assistance of the National Treasury, take urgent steps to ensure that the appropriate action is instituted against the appropriate SAPS officials that acted in contravention of the law, policy and other prescripts in respect of the procurement processes referred to in this report.

The SAPS must ensure that appropriate measures are implemented to prevent a reoccurrence of contraventions of the relevant procurement legislation and prescripts.

The National Treasury should develop and introduce measures that will prevent a recurrence of a situation where client departments of the DPW infringe on the functional areas of the DPW in respect of the procurement of leased accommodation.

Further to these, the National Treasury, the Ministers of Public Works and Police, the DPW and the SAPS must submit action plans and progress reports to the Public Protector in respect of the implementation of the remedial action referred to above.

What are my expectations from the organs of state involved? I am confident the organs of state in question will deal with my findings and remedial action contained in this report in the spirit of section 181(3) of the Constitution. This is in line with global jurisprudence on the status of the report of an Ombudsman. Indeed the Minister of finance has already endorsed the findings in the Draft Report wholly.

My confidence in the state’s ability and commitment to do the right thing is further bolstered by President’s J G Zuma’s remarks during the state of the nation address where he stated.

“We have a well-established institutions that support democracy and protect the rights of citizens, such as the Office of the Public Protector, the South African Human Rights Commission, the Office of the Auditor General, the Commission on the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Gender Commission”

Thank you.

Adv TN Madonsela
Public Protector of the Republic of South Africa
ENDS


R500m SAPS HQ lease deal unlawful

Feb 22, 2011 10:22 PM | By CHANDRÉ PRINCE and AMUKELANI CHAUKE
National police commissioner Bheki Cele and Public Works Minister Gwen Mahlangu-Nkabinde have fared the worst in the Public Protector ‘s damning report on the R500-million police HQ lease deal.

A five-month investigation by advocate Thuli Madonsela’s office details shocking findings about the conduct of South Africa’s top cop, and how his “improper and unlawful” conduct was central to the signing of the lease.

Flanked by Special Investigating Unit head Willie Hofmeyr, Madonsela revealed how Cele authorised funding for leasing the Middestad building in central Pretoria from property mogul Roux Shabangu.

The Middestad building he wanted to lease as his new police headquarters is next door to the current headquarters.

“The conduct of the accounting officer [Cele] … in respect of the procurement of the lease was improper and unlawful,” wrote Madonsela in her 91-page report.

Madonsela’s findings vindicate the Sunday Times reports that exposed Cele’s involvement in the deal. She praised the newspaper’s “courage” for exposing the deal.

Cele has repeatedly denied any wrongdoing, claiming that he merely signed the SA Police Service needs analysis. Yesterday, he released a statement saying that he was “vindicated” by the report.

But Madonsela found that:

Lease negotiations between the Department of Public Works and Shabangu were already at an advanced stage when the police gave their needs analysis to the department;
The police first identified the building and then adjusted the needs analysis to correspond to, or “retrofit”, the specifications of Middestad, which Shabangu had not yet bought;
The leasing of Middestad was not budgeted for in the police leasing or capital works budget;
The lease was not cost-effective;
Public Works failed to record its reasons for deviating from the prescribed tendering processes; and
The terms of the lease between Public Works and Shabangu were not approved by the Special National Bid Adjudication Committee, which they should have been.
Said the report: “The conduct of the accounting officers of the Department of Public Works and of the SAPS [Cele] . was improper and unlawful.

“It was evident throughout the investigation that a number of the officials interviewed expressed their reservations with the process followed by the SAPS to procure the lease. However, they were reluctant to raise their concerns with their superiors due to the culture of the SAPS in terms of which instructions are followed and not questioned,” the report said.

Former deputy national police commissioner Hamilton Hlela said in his interview with Madonsela that he was “unwilling to question the decisions and instructions of the national commissioner [Cele]“.

In his statement, Cele said: “The Public Protector not only stops at finding that General Cele did not sign the lease for Middestad Sanlam Centre, she goes further and vindicates General Cele’s widely disregarded protestations that businessman Roux Shabangu, the owner of Middestad Sanlam Centre, was a stranger to him up until their meeting in June 2010, when Middestad Sanlam Centre had already been selected by the Department of Public Works as the building that the SAPS were going to move into.

“General Cele will now be consulting his lawyers to explore what avenues are available to him as he seeks redress over these allegations that have caused him and his family so much pain and suffering over the past five months or so.”

In her report, Madonsela said that Mahlangu-Nkabinde ignored the opinion of two senior advocates and sealed the deal with Shabangu on November 22, the day that senior advocate Pat Ellis told Mahlangu-Nkabinde that the lease was unlawful.

Mahlangu-Nkabinde disregarded an undertaking made by her predecessor, Geoff Doidge, who had told the police that he would not finalise the lease pending the outcome of Madonsela’s investigation.

An internal Public Works inquiry in October, ordered by Doidge , also found the deal to be “invalid”.

But President Jacob Zuma fired Doidge in his cabinet reshuffle in early November. Shortly after she took office, Mahlangu-Nkabinde’s staff told Nedbank, Shabangu’s financier, that the department would honour the lease and the bank should release funds to Shabangu. Mahlangu-Nkabinde announced in December that the deal would go ahead.

Mahlangu-Nkabinde suspended her director-general, Siviwe Dongwana, on December 8 – the day he was due to be interviewed by Madonsela for her report.

Describing Public Works’ involvement in the deal as “reckless”, Madonsela said Mahlangu-Nkabinde must explain her decisions to the cabinet.

Madonsela said further investigations will determine whether anyone will be criminally charged or will have to reimburse the state.

Finance Minister Pravin Gordhan, commenting on a draft of the Madonsela report, had harsher words: “The National Treasury supports the further review of the lease agreement as a matter of urgency. This may include, if necessary, the initiation of criminal prosecution.”

The million-dollar question, Madonsela said, was: “How did Shabangu get involved with [the police]? His own evidence was not very helpful.”

She said the findings of a subsequent investigation into another lease deal between the police and Shabangu, for a building in Durban, to be released in a month, would determine whether any of those involved would be criminally charged.

Opposition parties yesterday again called for Cele’s head – and that of Mahlangu-Nkabinde.

Freedom Front Plus’s Pieter Groenewald – who, along with Paul Hoffman, the director of the Institute for Accountability in Southern Africa, lodged complaints against Cele with Madonsela – yesterday called on Zuma to act swiftly.

“If President Zuma is serious about his comments that corruption should be eradicated, he should fire both [Cele] and the minister because he appointed both. If he does not do it, he makes a mockery of clean administration and promotes corruption,” Groenewald said.

“More questions are arising about the firing of the former minister of public works, Geoff Doidge, who stopped the process to wait for the report of the Pubic Protector. The Freedom Front Plus will, after carefully studying the report, decide whether criminal charges will be laid.”

Hoffman said Cele should “be redeployed in politics, which is where he belongs”.

He said the Treasury should have no difficulty in cancelling the lease because regulations were clearly violated.

Hoffman criticised Mahlangu-Nkabinde’s failure to heed the advice of her advocates.

Shabangu said his lease agreement with the police was still valid.

THE STORY SO FAR

On August 1 last year, the Sunday Times exposed details of how Police Commissioner Bheki Cele ignored tender procedures when he signed a “dodgy” R500-million lease with billionaire businessman Roux Shabangu for a new police headquarters in Pretoria.

Three days later, Cele denied signing a lease agreement, and claimed he only signed a “needs assessment”. At a press conference, he also labelled Sunday Times reporter Mzilikazi wa Afrika, who broke the story, a “dodgy journalist”.

On August 7, the Sunday Times quoted the Public Protector confirming its “biggest probe ever” into the lease after a complaint was laid by the Institute for Accountability in Southern Africa and the Freedom Front Plus.

On September 5, three police generals, who said they were forced to resign from the force over the lease agreement, told the Sunday Times that Cele “lied” to parliament when he said his role ended with just identifying the police’s accommodation needs. They said Cele led the drive to relocate the police headquarters.

On October 19, following an internal inquiry and independent legal advice, the Department of Public Works informed Cele that the lease agreement with Shabangu was invalid.

On November 22, new Public Works Minister Gwen Mhlangu-Nkabinde advised Nedbank, Shabangu’s financier, that the she would honour the deal.

Yesterday, Public Protector Thuli Madonsela announced that the deal was unlawful.

Madonsela report: Will Zuma have guts to do the right thing?
The Editor, The Times Newspaper

The Times Editorial: Public Protector Thuli Madonsela has finally released her report on the leasefor the police’s Pretoria headquarters.

And she has confirmed what many suspected – that there was something untoward in the way in which the new headquarters building was acquired.

At the release of her report yesterday, Madonsela implicated just about every department involved in the deal, particularly Public Works and the police, both of which she found guilty of “improper conduct and maladministration” and of flouting the Treasury regulations that govern procurement.

As she sat before the media, Madonsela offered us a moment of integrity, honesty and courage – at potentially great cost to her office and herself.

Her report is clear in its condemnation of the misuse of state authority and of the subversion of procurement processes.

But her strongest criticism was reserved for Public Works Minister Gwen Mahlangu-Nkabinde, who signed the lease for the Pretoria offices with Roux Property Fund against the advice of senior legal counsel.

Madonsela described the way in which the department dealt with public funds as “reckless”.

Her report has vindicated the media houses, particularly our sister publication, the Sunday Times, which exposed the headquarters deal last year.

But it is what follows Madonsela’s revelations that is of vital importance. President Jacob Zuma’s response to her damning findings will be a watershed moment in his term in office. His response to the exposing of Cele and Mahlangu-Nkabinde must be public and swift. This is no time for an “elegant” solution.

Abstaining from a very public response will give credence to what many critics have said – that the president merely pays lip service to good governance, fighting corruption and accountability. And his silence would negate the very courageous work done by Madonsela.

ENDS

Previous Writing Rights article: Corruption and the ANC
.This entry was posted on February 24, 2011, 10:47 am and is filed under Active Citizenship, Corporate lawlessness, Corruption, Law and Constitutionalism, Political parties, Social Justice Coalition, South African politics. You can follow any responses to this entry through RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.

Nine in court for defrauding Sars

Nine in court for defrauding Sars
2011-02-24 17:02
Johannesburg - Nine people appeared in the Pretoria Magistrate's Court on Thursday for allegedly defrauding the SA Revenue Service (Sars) through irregular tenders, the National Prosecuting Authority (NPA) said.

"The matter was postponed to May 31 for further investigation," said NPA spokesperson Mona Moerane.

Mandisa Mokwena, Emilie Kinfack Djoumessi, Nancy Ashuma Akinboade, Maria Notshi Phake, Mankwane Daisy Makofane, Buti Baloyi, Bernard Mokwena, Oludele Akinloye Akinboade and Kenny Boshego were arrested on December 7.

They face charges of fraud, money laundering, racketeering and contravention of the Public Finance Management Act.

Mokwena is a former Sars deputy commissioner who resigned more than a year ago. Some of the others were academics at the University of South Africa.

The alleged offences were committed between September 2007 and May 2009 and related to procurement irregularities involving individuals attached to Sars' segment and research division, NPA spokesperson Mthunzi Mhaga said.

"It is alleged that some Sars officials and service providers colluded in defrauding Sars in about 45 transactions to the amount of over R11m."

He said service providers were contracted by Sars to provide research and training and that all these service providers were allegedly associates, friends and former academic acquaintances of Mokwena.

"In essence, the accused allegedly circumvented Sars supply chain management and procurement procedures to ensure that several contracts were awarded to service providers associated with them," said Mhaga.


SAPA

Illegal activity threat to SA economy

Illegal activity threat to SA economy
Feb 24 2011 15:44

Sapa

Feb 23 2011 14:02

The essence of Finance Minister Pravin Gordhan's 2011 budget statement sliced and diced for you. (Picture: Photo24)

Employer contributions now taxable
Feb 23 2011 14:04

Company retirement contributions will be treated as a taxable fringe benefit, but there's some good news for employees.

Cigarette tax soars, luxury cars hit
Feb 23 2011 15:02

Smokers, drinkers and those who drive luxury cars have been targeted in this year's budget.

Cape Town - The so-called illicit economy is much more of a threat to South Africa's regular economy than previously thought, Trade and Industry Minister Rob Davies said on Thursday.

There was the question of illegal imports which were damaging industries and jobs, he told a media briefing at parliament.

But there were also a number of other attempts at illegal activity which were important.

One could cite company hijackings, which was a form of identity theft.

There was intellectual property piracy, which was particularly damaging to the South African music and film production industries.

"There are all sorts of other kinds of activities that are going on, and I think our understanding is that quite a lot of this is being conducted by increasingly sophisticated international-linked criminal syndicates," Davies said.

When one thought about intellectual property piracy, one perhaps thought that this was "some little street trader".

"Well, that is the one who sells the stuff; who produces it is a criminal syndicate probably also involved in abalone smuggling, drug dealing and things of that sort."

That was the nature of the problem being faced, he said.

The cabinet had decided there would be an intensive interaction between the economic cluster of ministers and the criminal justice cluster regarding the illicit economy.

"I think we have a better understanding of the nature of the problem.

"It's linked, I think, very much to the (draft) immigration (amendment) bill, because a lot of the people involved in this are probably also illegal immigrants coming into South Africa, involved in illegal acquisitions of property used for various nefarious purposes and so on.

"And I think what you can anticipate is that we will be working intensively on this issue, but also I think smarter and more effectively as we move further forward," Davies said.

On the example of the illegal imports, there had been a lot of inputs from the industry.

"We're working on this matter and I think that we're looking at ways in which we will become much more effective in combating the totality of this menace.

"Because what it does is it costs us jobs, and in fact if we're more effective we will save a considerable number of jobs in the South African economy."

Asked about the extent of the illicit economy in monetary terms, Davies said: "Being illicit, they don't report to Stats South Africa, they don't submit VAT returns, so to measure the size of it is a little bit difficult.

"But I think that what we are becoming aware of is that it is probably more of a threat than we thought it was in the past, and in that regard we're stepping up our work to combat its negative effects on job creation and on legitimate business activity in this country."

It was much more that illegal imports. It was a whole range of other activities which were harmful to productive activity in South Africa, Davies said.

AWB recruitment drive turns heads

Feb 20, 2011 1:35 AM | By BONGANI MDAKANE
A small group of Afrikaner Weerstandsbeweging (AWB) members caused a stir in Johannesburg yesterday when they set up a roadside camp as part of a recruitment drive.

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A young boy holds up the AWB flag outside the Ventersdorp Magistrates Court where two men appeared on murder charges for the killing of right wing leader Eugene Terre Blanche. The right wing faction says it will enter into negotiations with the government for self governance.
Photograph by: .


Residents of the western suburb of Montgomery Park said they were not happy with the right-wing movement's presence in the suburb yesterday.

"Why are these people here? It poses a threat to us as residents," said one resident.

But Pieter Hanekom, who described himself as a leader of the AWB, said they were not doing anything illegal.

"All we are doing is to recruit our people to join the movement," he said.

"We want to involve the public to be proud of being AWB members, and our aim is to grow the number of members in our movement."

Hanekom said the AWB was not racist, but when asked if a black person would be allowed to sign up, he replied: "On that one, I will need to consult with the head office."

Another woman, who like Hanekom was clad in the AWB's khaki uniform, said: "We want to teach our children our history, as it is no longer being taught in schools. The old AWB is gone, and the new one is not racist any more."

Yet the woman, who would not identify herself, said she would "personally chase blacks away".

"Blacks have their own culture, and they are not welcome to be part of us. As for us, we have our own culture and we respect it," she said.

A man in his early 40s who joined the gathering, wearing a Johannesburg Metro Police Department uniform, warned the Sunday Times not to take his picture.

"I don't want my pictures or my car to be photographed. I hope you can see that I am an officer, so make sure that I don't appear in your story," he said.

Times Live

Comments by Sonny

The past belongs to the past.

Focus on a brighter future!!