After months of legal wrangling and (probably) heaps of legal fees The Herald finally got the go ahead from Acting Judge Nceba Dukada that the full Kabuso forensic report on maladministration in the Nelson Mandela Bay Municipality be handed over to The Herald in the next five days (by the end of October 2011).
In the interim The Herald has made electronic copies of the documents available:
- The legal interpretation of the Kabuso report (14.8mb)
- The Kabuso report split into 4 files, Kabuso 1 (1.2 mb), Kabuso 2 (0.9 mb), Kabuso 3 (1.1 mb) and Kabuso 4 (0.35 mb)
- The full judgment in the case (0.5 mb).
The MEC for the Eastern Cape Department of Cooperative Governance and Traditional Affairs, Mr Mlibo Qoboshiyana, and the Executive Mayor of the Nelson Mandela Bay Municipality addressed the media and stakeholders on Wednesday 26 October on the Kabuso Forensic Investigation report. This came shortly after briefings with internal and external stakeholders of the municipality.
After the Kabuso Report summary below you will find the entire statements made by the MEC and the Executive Mayor.
Following a request from the Executive Mayor, the MEC also announced the secondment of Mr Themba Hani as the Acting Municipal Manager of the Nelson Mandela Bay Municipality for the next 90 days pending a court decision on the current interdict against the appointment of the Municipal Manager.
In the Kabuso Report a number of legal opinions on the forensic findings are proposed with regard to:
- Madiba Bay Resorts; “….a complaint should be laid at the South African Police Services for fraud and related criminal offences to be defines by the Director of Public Prosecutions against both councillor NC Faku and the directors of Madiba Bay Resorts (Pty) Ltd, especially Johann Dreyer a signatory to the written lease agreement ….”
- Van Stadens Resort; “That the municipality take steps to cancel, reclaim and evict the Lessee from the municipal land. That the ‘improvements’ effected to the municipal land without authority and at the instance of the Lessee be assessed and if found to be prejudicial, be demolished and that the site be made good at the cost of the Lessee. That legal action be instituted against the Lessee for the payment of rental since date of occupation during August 2004.
- Embizweni (Wells Estate); “That the written lease agreement be cancelled. That Isimilo be evicted from municipal property. That criminal charges be laid against Councillor Faku. That the grant funding be reclaimed from Councillor Faku and Isimilo through legal action.”
- Beachview Development; “That the written lease agreement be cancelled. That Isimilo be evicted from municipal property. That criminal charges be laid against Councillor Faku. That the grant funding be reclaimed from Councillor Faku and Isimilo through legal action.”
- Njoli Square Development; “No evidence of irregular, unauthorised, wasteful and fruitless expenditure.”
- Motherwell Urban Renewal Programme; “There appears to be undue delay. Since 2001 the project has been shunted from one municipal directorate to another. Mr W Shaidi should be called to account for non-implementation.”
- Kwantu Towers; “The Metro continues to renew existing leases although alternative and less costly offive accommodation is available at Algoa House.”
- Red Location Museum – Mausoleums; “There is sufficient information available, without further investigation, to justify the issue of summons to recover the expenditure from both Mr Nceba Faku and Dr P Martin, the then acting municipal manager.”
- Red Location Museum Curio Shop; “… the award of the lease was flawed and that the sumbission of the successful tenderer be referred to SAPS to investigate a case of fraud.”
- Security Tender – MBDA; “… we could not detect any irregularities in the award process.”
- Automatic Meter Reading (AMR); “There is sufficient reason to hold municipal officials to account for unauthorised fruitless and wasteful expenditure.”
- Declaration of interests; “Section 57 managers and Councilors have completed declarations as per the prescripts”
Broad Based Black Economic Empowerment; “The BEE expenditure of each Directorate is reported on a monthly basis.”
- Reporting Mechanisms; “There are mechanisms in place to report to the Mayoral Committee and council in the form of monthly and quarterly performance reports.”
- Legal Services; “The Municipality Director: legal Services, Mr Joe Malobola, in the course of compiling a report in support of the identification of a panel of legal service providers to the municipality analysed briefing patterns during the period of 2006 to 2009. These reveal a fixed, if not entrenched, preference for five other firms. (Gray Moodiliar, Liston and Brewis, McWilliams and Elliot, Boqwana, Loon and Connellan and Goldberg and De Villiers). An attempt has been made to instruct a host of other firms to a small extent.
- Former Councillor EG Jerry (ISODEF, Jerry’s company was overpaid R289 909.86 by the Metro); “the then Municipal Manager, Adv. G Richards, remains accountable for the overpayments and/or financial mismanagement.”
- Former Councillor Madaka; “Of concern is the participation of Madaka in local government when he did not occupy a position on the party list that entitled him to be declared elected. This was occasioned by confusion for which the Regional structures of the ANC are responsible.”
- Chris Jamda; “The allegations against Jamda were found to be predated and without merit.”
- Dr Chabula; “That the extent of fruitless and wasteful expenditure in relation to the litigation be determined and that it be recovered from Adv. G Richards.”
- Mr Mapu; “In terms of section 32(1)(d) of the Municipal Finance Management Act the municipal manager, Richards, in his capacity as accounting officer is liable for the fruitless and wasteful expenditure even on the basis of negligence.”
- Mr Toyis; “It is the writer’s opinion that the reinstatement of Toyiis caused fruitless and wasteful expenditure. The issue is which municipal official should be held accountable? Until the matter is properly investigated an opinion is not possible.”
- Mr Hani; “In terms of section 32(1)(d) of the Municipal Finance Management Act the municipal manager, Richards, in his capacity as accounting officer is liable for the fruitless and wasteful expenditure even on the basis of negligence.”
- Mr Camagu; “While it is open to the MEC to request the municipal council, by written notice, to furnish reasons for Camagu’s reinstatement, this would serve no useful purpose.”
- Swartkops Power Station; “We could not find any evidence indicating that the Metro had monitored the redevelopment of the Swartkops (Power Station), specifically relating to the conditions stipulated in the agreement.”
- Erf 7234, Sidwell; “No progress was reported on the files submitted for review.”
- Municipal Grant for Returning Exiles; “…there is a lack of available documentation and officials interviewed have not been able to provide any further assistance.”
- Africorp International Properties; “The great concern is the issue of prescription. I have insufficient information to expres an opinion. However should the debt have been allowed to prescribe (as at February 2001 the deby amounted to R8.9 million) there is a potential for a loss of R16 million, regard being had to interest on the debt. The status of the High Court action should be ascertained as a matter of urgency” and “There is reason to believe there exists maladministration and malpractice.”
The Kabuso Report is signed by V.V. Sonamzi, Senior Manager: Legal Services, Province of the Eastern Cape.
Kabuso Report statement issued by the Eastern Cape Local Government and Traditional Affairs Ministry on 26 October 2011, under the hand of MEC Mlibo Qoboshiyane:
The Department notes the judgement handed down by Judge Dukada on 20 October 2011, which inter alia orders the Department to deliver to Avusa Publishing Eastern Cape (Pty) Ltd within 5 (five) days of the order a copy of the complete report, together with its annexures. As the MEC I am considering the Judgement but the Kabuso forensic report and annexures will be delivered to the Avusa Publishing Eastern Cape (PTY) LTD as ordered.
Judge Dukada has made a finding that the initial reasons afforded for the refusal to make the Kabuso report available do not constitute “adequate reasons”. In this regard the learned Judge subsequently makes a definitive finding that I was “justified in terms of section 44(1)(a) and (b) of PAIA to refuse access to the Kabuso report.”
To this, important extent, my approach has been fully justified. It is significant, but nevertheless disappointing, that this important finding has received no publicity or emphasis whatsoever.
We are perturbed by the actions of the Herald which has made an unofficial copy of the Kabuso report and legal opinions available on its website since 21 October 2011, without affording the Department the opportunity to comply with the order. I wish to stress that the release of the legal opinions was not part of the judgement and further that the legal opinions are privileged information and for departmental consumption only. In my opinion the decision by the Herald to make an unofficial copy of the report, including legal opinions, available on its website constitutes unethical conduct without regard for the execution of the court order, which process was instituted by Avusa Publishing Eastern Cape (Pty) Ltd.
It is essential for a proper contextualisation of the developments to explain briefly my obligations in terms of section 106 of the Local Government: Municipal Systems Act 32 of 2000 (“the Systems Act”) as well as sections 139 and 154 of the Constitution.
The Systems Act and the Constitution
My responsibilities as the MEC responsible for Local Government broadly stated, are to monitor and supervise the performance of municipalities across the Province of the Eastern Cape.
As part of the monitoring and supervisory process, I am empowered by section 106(1)(b) of the Systems Act to appoint a person to conduct an investigation into the affairs of any municipality in the province, whenever I have reason to believe that such a municipality cannot, or does not fulfil its statutory obligations, or that maladministration or fraud or corruption or any other serious malpractice has occurred or is occurring in that municipality.
Once an investigation into the affairs of a municipality has been finalised, and upon consideration of the findings of the investigation, if it appears that a municipality cannot or does not fulfil its statutory obligations, or that there is maladministration or fraud or serious malpractice in that municipality, the Constitution enjoins me, as the MEC responsible for Local Government to intervene into the affairs of such a municipality in order to ensure the fulfilment of its statutory obligations.
Broadly stated, the Constitution permits and requires of me, as MEC responsible for Local Government, to supervise the affairs of the municipalities and to intervene when things go wrong. In particular, I am obliged in terms of section 139(1)(a) of the Constitution, upon failure by a municipality to fulfil its statutory obligations, to issue a directive to the Municipal Council describing the extent of the failure to fulfil its obligations and the steps required for it to fulfil its obligations.
I mention that Section 154 of the Constitution envisages less drastic measures than those contemplated in section 139 of the Constitution. It enjoins the provincial government to support and strengthen the capacity of the municipalities to manage their own affairs, and to perform their functions through legislation and other measures.
I also mention that in order for me to be able take a decision on appropriate interventions, or a decision on whether an intervention would be appropriate at all, it is necessary for me to provide the Municipal Council with the findings of the investigations, and to afford it an opportunity to respond to the issues raised by such an investigation.
I have provided the NMM with the Kabuso report, and have invited its responses to the various issues raised therein. I have been informed by the Executive Mayor Wayile (“the Mayor”) that Council will convene on 27 October 2011 to deliberate and resolve on the responses to the Kabuso report.
Below I deal with the steps that I have taken in ensuring that I deal with this matter with the expedition that it deserves, as well as the steps taken by the NMM thus far.
Progress made thus far
In March 2009, the Council of the NMM, passed a motion of exigency to the effect that maladministration had occurred and was occurring in the Municipality. During that time the then MEC for Local Government and Traditional Affairs, MEC Gqobana received a letter from the then Executive Mayor, N Maphazi, wherein she raised her concerns that certain acts of maladministration were occurring in the Municipality.
In August 2009, MEC Gqobana, exercised the power entrusted to him by section 106 (1)(b) of the Local Government : Municipal Systems Act, 2000 (Act No. 32 of 2000) and appointed Kabuso, an independent firm of forensic investigators to investigate the following matters:
The manner in which the Madiba Bay Project was initiated and executed;
Slow progress and lack of creative solutions to overcome the problems regarding the following projects;
- Missionvale Garden Lots Housing Program;
- Embizweni Development;
- Beachview Development;
- Walmer Gardens (Ward 4) methane gas problem; and
- Njoli Square Development Project;
- How the Motherwell Urban Renewal Program was managed;
How the following projects were initiated and executed;
- Kwantu Towers;
- Red Location Museum;
- Housing roof;
- Security tender by the Mandela Bay Development Agency;
- Automatic meter reading; and
- Municipal grant for the returning exiles, the Matomela Projects;
- The claims and counter-claims between the Municipality and Africorp International Properties;
- Whether councillors and senior managers’ declared interests and other indirect business, as required;
- Whether the Municipality implemented Broad Based Black Economic Empowerment and whether any support was provided to local black businesses in development matters;
- Whether there were any reporting mechanisms with regard to service delivery projects, and if so, how regular reports were submitted to the mayoral committee, council and respective benefiting communities;
- Whether supply chain management processes were followed in acquiring legal services from January 2006 onwards;
- Circumstances surrounding the dismissal, reinstatement, re-employment or withdrawal of disciplinary proceedings in respect of certain municipal employees;
- How it came about that the right to lease and renovate the Van Staden’s Resort was granted to Buhlebendalo in 2004;
- How the agreement to sell the Swartkops power station was initiated and implemented;
- Whether supply chain management processes were followed prior to and during the sale of the Swartkops power station; and
- The circumstances surrounding the disposal of Erf 7234, Sidwell in Port Elizabeth and the legality of the disposal thereof.
During March 2010, Kabuso submitted a report relating to the above matters. It must be noted that the matters investigated and reported on by Kabuso spanned over the period 2003 to August 2009.
The Department then appointed a Senior Legal Counsel to provide opinion on the findings of the Kabuso report, the said opinions were finalised in October 2010.
On 27 November 2010, I assumed the position of MEC of the Department and on 20 December 2010, I was briefed on the Kabuso report and legal opinions.
Subsequent to the briefing, I requested that a process plan, setting out the steps that should be followed towards the tabling of the above stated report, be developed. The said process plan was finalised in January 2011.
On 28 March 2011, I presented a condensed report, containing the findings of the Kabuso report, to the Mayoral Committee and requested specific responses thereto.
On 20 May 2011, the Mayor provided me with the NMM’s responses to the issues raised in the Kabuso report. I was not satisfied with the responses that I was provided with, as they were inadequate and did not address all the issues raised in the report in detail, further the responses were not endorsed by Council.
Accordingly and on 22 June 2011, I addressed a letter to the Mayor and expressed my concerns in respect of the inadequate and incomplete manner in which the NMM dealt with the issues raised in the Kabuso report. In that letter, I specifically outlined the level of detail and particularity with which the NMM was expected to deal with the issues raised by the Kabuso report, in order to assist me in taking an appropriate decision.
I gave NMM a period of 30 days within which to adequately deal with the issues raised in the Kabuso report.
Subsequent to that letter, and on 1 August 2011, Mr Khanyile, the Superintendent-General, met with the Mayor, again with a view to impressing upon him, the significance of providing appropriate and adequate responses to the issues raised in the Kabuso report with a degree of expedition. At that meeting, the Mayor undertook to finalise the responses by no later than 31 August 2011, after which such responses would be tabled before the Municipal Council for consideration and endorsement.
I mention that in the interim, and in an effort to rebuild the institutional structures of the NMM, the Mayor has sought my assistance as well as that of the National Department of Co-operative Governance and Traditional Affairs (“CoGTA”) in providing support, and strengthening the capacity of the Municipality in areas of Supply Chain Management, Human Resources Management, Contract Management, Legal Advisory Services, Financial Management, and Economic Development.
After considering the Mayor’s request I have come to the conclusion that the appropriate steps to take in respect of the institutional challenges that the Municipality currently faces, are for the provincial government to provide support and strengthen the capacity of the NMM as required by section 154 of the Constitution.
In this regard, a task team comprising of the officials of CoGTA and the Provincial Department of Local Government has prepared a process plan to assist the NMM in enhancing its institutional structures.
I mention that this process is not directly as a result of the issues raised in the Kabuso report, but as a result of the review process undertaken by the NMM in terms of its capacity to function properly. However, I have no doubt that the issues raised in the Kabuso report will also be useful in assisting me in taking the appropriate decision in order to render further support to the NMM.
The Mayor has advised me that a Council meeting was convened on 9 September 2011, at which meeting the Mayor tabled the Kabuso report, together with recommendations that a task team consisting of 3 members of Council be appointed to deal with the matter. In other words, the NMM will only be able to provide me with appropriate and complete responses to the issues raised in the Kabuso report once those responses have been considered and endorsed by Council.
On 18 October 2011, as I had not yet received a response from the NMM, I addressed a letter to the Speaker of the Council and requested that the matter be expedited.
On 21 October 2011, I met with the Mayor who gave me a letter, confirming that a Task Team comprising of 3 Councillors has been established and will be supported by technical expertise from within and outside the NMM.
I once again wish to reiterate that until I have received responses, endorsed by Council, from the NMM on the issues raised in the Kabuso report, I am not yet in a position to make determinations on the further action and /or appropriate steps on the issues that are raised in the Kabuso report.
As I have already indicated above, it is my intention to expedite this process. I mention that I am aware that in a constitutional democracy such as ours, one of the basic values and principles governing public administration is transparency. I am acutely aware that transparency demands that the public must be provided with timely, accessible and accurate information.
Below I deal with further processes that must follow once I have been furnished with appropriate responses by the NMM.
Processes on receipt of appropriate responses
I shall, as soon as I have been provided with the appropriate responses, endorsed by Council, on the issues raised, consider same and make determinations, should it be necessary.
Once I have taken the decision, I shall prepare and submit a report on the findings of the Kabuso investigation, the NMM responses thereto, as well as my reasons for my decision to the national Minister of CoGTA, the national Minister of Finance, the Provincial Legislature, as well as the National Council of Provinces. I previously estimated that the entire process would have taken approximately three months to conclude. This timeframe was communicated to the NCOP, the national Ministers of Finance and CoGTA respectively. As the MEC, I will consider the appropriate action to be taken in finalising the section 106 process and communicate that with all relevant stakeholders.
Responses required from NMM
I have applied my mind to the findings of the Kabuso report and the various legal opinions and accordingly requested that the Council deliberate and provide written responses to the following:
- Madiba Bay Project: Did the municipality comply with the provisions of the Cape Municipal Ordinance in the award of the development lease to East Cape Show Case, if not, then the municipality would be entitled to approach the court for an order declaring the lease to be invalid. What steps has the municipality taken to prevent itself from submitting to an unlawful contract as the Municipality is entitled, indeed obliged, to ignore ‘such contract’ and ‘to resist attempts at enforcement’. What steps has the municipality taken to abide by its decision to treat the written lease as cancelled. What steps has the municipality taken to evict East Cape Showcase from the municipal land. Such proceedings will serve to precipitate matters in relation to the validity of the cancellation. Has the municipality reported the matter regarding the grant of R2 million to the South African Police Services for fraud and related criminal offences to be defined by the Director Public Prosecutions against both Nceba Faku and the directors of Madiba Bay Resorts (Pty) Ltd, especially Johann Dreyer a signatory to the written lease agreement who was instrumental in the transaction to extract R2 million to fund the renovation and operation of the Willows Resort. What steps has the municipality taken through legal action to reclaim the R2 million grant from the Madiba Bay Resorts (Pty) Ltd, Johann Dreyer and the other directors and Nceba Faku, the one paying for the other to be absolved on the basis of fraud and, in relation to Nceba Faku, recovery in terms of section 10(g) of the Local Government Transitional Act for unauthorised expenditure. What steps has the municipality taken to claim from East Cape Show Case such rates and taxes as are payable in terms of the written lease agreement through legal action.
- What is the municipality’s action regarding the management of the Willows Resort by the Madiba Bay Resorts (Pty) Ltd. What steps has the municipality taken to claim the R1 million performance guarantee in terms of the written lease agreement.
- Embizweni Development: The rationale of the final extension granted to Embizweni in May 2009 to comply by 30 June 2009. Notwithstanding that it could be reasonably anticipated that Embizweni were not in a position to comply by 30 June 2009 due to the lengthy Environmental Impact Assessment process. Since the land availability agreement stands cancelled what is the proposed action by the municipality regarding the development of the land. What steps has the municipality taken to claim the R1 million Performance Guarantee as the Lease agreement is technically cancelled.
- Beachview Development – Isimilo: What steps has the municipality taken to cancel the written lease agreement with Isimilo. What steps has the municipality taken to evict Isimilo from the municipal property. Has the municipality reported the matter regarding the grant of R422, 182.89 to the South African Police Services for fraud and related criminal offences to be defined by the Director Public Prosecutions against both Nceba Faku and the directors of Isimilo. What steps has the municipality taken through legal action to reclaim the R422, 182.89 grant from the Directors of Isimilo and Nceba Faku, the one paying the other to be absolved on the basis of fraud and in relation to Nceba Faku, recovery in terms of section 10(g) of the Local Government Transitional Act for unauthorised expenditure. What steps has the municipality taken to claim the R200, 000.00 performance guarantee as the lease has technically lapsed. What steps has the municipality taken regarding claiming from Isimilo the R100, 000.00 in respect of the loose items.
- Van Stadens Resort: What steps has the municipality taken to cancel the written lease agreement with Buhlebendalo. The cancellation of the lease agreement would serve to revive contractual arrangements between Calvus and the municipality in terms of which the public are entitled to access to the resort for an indefinite period being not less than 99 years from January 1989. What steps has the municipality taken to evict Buhlebendalo, especially Kobus Smit and Mkuseli Faku from the municipal property. Has the municipality undertaken an evaluation of the extent of additions and renovations for the private purposes of Kobus Smit and Mkuseli Faku and further, what steps has the municipality taken to recover damages arising from such additions and renovations from Buhlebendalo, especially from Kobus Smit and Mkuseli Faku, the one paying for the other to be absolved on the basis of fraud. What is the municipality’s recourse against Buhlebendalo considering that the R200, 000.00 performance guarantee has technically lapsed. What steps has the municipality taken regarding claiming from Buhlebendalo the R436, 303.02 in respect of the loose items. What disciplinary actions is the municipality intending to take regarding the various officials’ inexplicable lack of oversight and compliance regarding monitoring the development and further the condonement of irregular structures constructed for the private purposes of Kobus Smit and Mkuseli Faku on municipal property. Why would the municipality deem it necessary to evaluate a “quick fix” plan by the developer, which is not in line with the ODP. What steps has the municipality taken to cancel, reclaim and evict the Lessee from the municipal land.
- Red Location Museum: Has the municipality’s internal audit unit released the said report, if not, why not? If so, then what steps has the municipality taken to report the matter regarding the appointment of Aldav Construction CC/SBT in the amount of R1, 407,929.23 to the South African Police Services for fraud and related criminal offences to be defined by the Director Public Prosecutions against both Nceba Faku and Dr P Martin. What steps has the municipality taken through legal action to reclaim the R1, 407,929.23 from Dr P Martin and Nceba Faku, the one paying for the other to be absolved on the basis of fraud and, in relation to Nceba Faku, recovery in terms of section 10(g) of the Local Government Transitional Act for unauthorised expenditure.
- What is the municipality’s proposed plan of action for the mausoleums? What steps has the municipality taken to report the said irregular expenditure to the Mayor, MEC for Local Government and Traditional Affairs and the Auditor General in writing.
- Security tender by Mandela Bay Development Agency: How the MBDA’s focus from requesting proposals for the development of a security plan changed to the provision of security services. The municipality must explain on what basis Richards extended the contract in January 2009, as at that stage, the parties to the said contract was Omega and the MBDA. The municipality should immediately desist from the payment of anything above 5% on rates agreed in terms of the security contract with Omega. The difference between 5%, for which the contract makes provision, and 12.5% constitute fruitless and wasteful expenditure for which Richards is accountable. On a contractual basis the municipality has a claim against Omega Risk Solutions (Pty) Ltd for the overpayment.
- Automatic Meter Reading: What is the status of the AMR contract with Unique Mbane.
- Municipal Grant for returning exiles: Provide comprehensive documentation and explanations regarding the grant of R500, 000.00 awarded to the returning exiles.
- Africorp International Properties: Who initiated and/or facilitated the withdrawal or postponement of the High Court action, the cost of this to the municipality and why municipality and why municipal officials or municipal politicians have not been held to account for the fruitless and wasteful expenditure which must surely have been occasioned. The policy of the Municipality regarding negotiation process and the anticipated outcomes of such a process versus legal action must be included. The status of the High Court action against Africorp.
- Legal services: The Municipality’s efforts to ensure that opportunities are being provided to emerging HDI firms and Senior Counsel to obtain experience in municipal matters. The Municipality confirms that all appointments in respect of legal services are made via the Legal Services Unit.
- The capacity of the Municipality’s Legal Services Unit to administer and manage Legal matters both internally and out/co-sourced.
- Former Councillor EG Jerry: Explain the appointment of Deloitte which was not in accordance with Municipality’s Supply Chain Management Policy. The municipality should explain steps taken to recover the payments from Richards. The status of the civil action regarding the recovery of the R289, 909.86 from ISODEF/Jerry by the Municipality. The status of the criminal action in respect of ISODEF/Jerry
- Councillor Madaka: The Municipality’s action regarding the payments of approximately R110, 000.00 to Madaka, which payments were made due to the interference of the ANC Regional Secretary in the IEC appointment process and the IEC acting on un-procedural instructions.
- Dr Chabula: Why did the Municipality continue to oppose Dr Chabula’s application notwithstanding being advised by Senior Counsel that such opposition will not be successful. Who gave the instructions to oppose the application. What legal costs and other costs did the Municipality incur as a direct result of the aforesaid opposition. What steps has the Municipality taken to recover the fruitless and wasteful expenditure from Richards, in terms of section 32(1) of the Municipal Finance Management Act.
- Mapu: What steps has the municipality taken to recover the fruitless and wasteful expenditure in terms of section 32(1)(d) of the Municipal Finance Management Act from Richards, in his capacity as accounting officer. Was the procurement of Deloitte (to conduct the investigation into the allegations relating to Mapu) in accordance with Nelson Mandela Bay Municipality Supply Chain Management Policy. Who authorised the procurement of Deloitte? What amount was paid to Mapu during his suspension. What were the total costs (legal and forensic) incurred by the municipality in relation to Mapu’s disciplinary proceedings. Under what legal authority and why did the council interfere with, and resolve upon, the termination of disciplinary proceedings and the reinstatement of employees under suspension.
- Toyise: Why did the Municipality withdraw from the arbitration proceedings against Toyise notwithstanding the fact that Toyise’s application to interdict his suspension was dismissed with costs and that the internal disciplinary enquiry found Toyise guilty and dismissed him. What legal costs and other costs did the Municipality incur as a result of Toyise’ dismissal and subsequent reinstatement. Why was Toyise reinstated notwithstanding the Council resolution was inapplicable to his case.
- Hani: What steps has the municipality taken to recover the fruitless and wasteful expenditure in terms of section 32(1)(d) of the Municipal Finance Management Act from Richards, in his capacity as accounting officer. Was the procurement of Deloitte (to conduct the investigation into the allegations relating to Hani) in accordance with Nelson Mandela Bay Municipality Supply Chain Management Policy. Who authorised the procurement of Deloitte.
- Under what legal authority did the municipal council resolve to terminate disciplinary proceedings and reinstate Hani. What amount was paid to Hani during his suspension. The total legal costs that the Municipality incurred in relation to Hani’s disciplinary proceedings.
- Swartkops Power Station: Has Council considered approaching the Court with an application for a declaration that the agreement is of no force or effect and that the purchaser take all steps necessary to transfer the land to the municipality.
- Erf 7234, Sidwell: Has Council considered approaching the Court with an application for a declaration that the agreement is of no force or effect and that the purchaser take all steps necessary to transfer the land to the municipality.
- Kwantu Towers: The Municipality’s reasons for the continuous renewal of the existing lease agreements with Africorp notwithstanding available office space in Algoa House. The Municipality’s response on whether comparative prices were obtained for similar office space in the city centre prior to the renewal of the respective lease agreements.
It is important that responses are received from the NMM as that will reflect the manner in which we will address all matters raised in the kabuso report so as to ensure that effective service delivery and economic development is achieved by the Metro to benefit its people. Clean administration is important in building better communities, we remain committed to this and we will work hard to ensure respect of law in all our municipalities.
The Nelson Mandela Metropolitan Executive Mayor, Zanoxolo Wayile’s 26 October 2011 statement on the releasing of the Kabuso Report:
Firstly, we welcome the Statement of the MEC on the Kabuso Report and management and administration of our institution.
As you know, the Nelson Mandela Bay Metro is one of only two metropolitan municipalities in the Province and one of eight in the country, making our city one of the key drivers in the progress and development of our province and country.
Because of this, it is critical that our management and administration is uncompromisingly sound, and one that inspires confidence in investors, traders, tourists, stakeholders and, most importantly, the residents of our city, who are the recipients of the services we deliver, and at the same time, the revenue base in addition to government grants.
We therefore have a duty to ensure that we do everything, together with our counterparts and partners in our Province, to continue to be a well-respected, competent, able-bodied administration, that is a well-oiled vehicle for change, transformation, development and the delivery of quality services to the people.
To this end, as the MEC has attested to, in March 2009 the Nelson Mandela Bay Municipality reported various allegations of maladministration that were brought to our attention to the then-MEC S Gqobana. Upon this, the MEC’s Office instituted an investigation, which is the “Kabuso Report”.
The MEC’s Office has now concluded a thorough investigation and the Municipality, through my office, has responded thereto and filed these responses with the MEC on Friday last week (21 October 2011). The Report and responses were tabled at the Council meeting on 9 September 2011, so that the responses are not a concoction of my office or the ruling party – but it is indeed the response of this Council as a collective to the MEC’s Office.
As you will see, the Report makes specific recommendations, which includes legal action to be taken against certain individuals mentioned therein. As the Executive Mayor, I plan to table the Kabuso Report, together with the recommendations that were noted at the last Council meeting, at tomorrow’s Metropolitan Council, for consideration and adoption. In addition, in accordance with the resolution taken at the last Council meeting, I am appointing a Task Team of three persons, namely Cllrs M Bungane, B Naran and N Tontsi to facilitate the implementation of the recommendations and resolutions which will be adopted tomorrow. The Task Team will be assisted by ECSECC, whose duties will include the unlocking of bureaucracy, legal obstacles and resources to fast-track the process, so that projects can be identified to generate revenue and give effect to job-creation and development.
In this respect, I would like to appeal to all stakeholders and especially the media not to continue to speculate on the outcome of such processes. I am confident, and can therefore say with conviction, that in all respects we have properly and duly followed the process and dealt with this matter fairly and in terms of good governance.
I wish to state further that the Nelson Mandela Bay Municipality is committed to good and clean governance. Evidence of this can be seen by the fact that we, inter alia:
- have developed, passed and are implementing our Turnaround Strategy,
- have approved and are implementing the Anti-Corruption Strategy,
- established a Risk Management Office,
- improved our Supply Chain Management processes by reviewing the Policy and developing a Standard Operating Procedure Manual for its implementation, and
- established a fully functional Municipal Public Accounts Committee.
In addition, we welcome the secondment of Mr Themba Hani from the Office of the MEC. We are pleased that a person of the calibre of Mr Hani, with his vast experience and expertise, can be released from his current duties to take charge of our administration. We wish to thank Mr Hani for being a true public servant of a special type, by taking leave of his family and home to spend his time with us here. We pledge to make your stay here as comfortable as possible. I am sure that by working together we can definitely build better communities in Nelson Mandela Bay.
In this respect, I am sure that there are questions about Mr Elias Ntoba, the former Acting MM, who was seconded by the Minister of COGTA. Mr Ntoba was amicably released of his duties this week. We take this opportunity to thank Mr Ntoba for his time here and the work he has undertaken in managing a sometimes-complex institution, and we wish him well in his future endeavours.
I further wish to, on behalf of Council, welcome the support of the MEC and CoGTA, both Nationally and Provincially, to provide assistance to the NMBM in the areas as mentioned. This gives true credence to the principle of co-operative governance.
I take this opportunity to reflect on the Medium-Term Budget Framework as delivered by our Minister of Finance, Pravin Gordhan, to the National Assembly yesterday. There are, not of our own doing, bleak economic prospects ahead and this means that we must innovatively and decisively come up with visionary strategies and plans to develop our city. To this end, and with the assistance of the MEC’s Office, we will be doing everything we can to accelerate the implementation of our Vision 2030 MegaProjects. We wish to send out an emphatic call to the world that Nelson Mandela Bay remains a prime investment destination for a number reasons, including world-class infrastructure, a skilled labour force and a stable and investment-friendly local government.
On behalf of Council, I want to take this opportunity to wish all our Hindu residents a Happy Diwali. May the light of the Almighty shine on you and your loved ones forever and ever.
As we engage you today, our matriculants are busy preparing for and writing their exams and, on behalf of all Councillors, we wish our matriculants well in their exams. Remember, the future is yours and you must take it with both hands.
Ladies and gentlemen, Nelson Mandela Bay remains a thriving, bustling, economically prosperous city. Yes, we do have our problems and challenges – as your city’s leaders, as the collective of the Council, and with the help of our counterparts in Provincial and National government, we decisively deal with each of these challenges as they present themselves. And today’s report to you is no different – it is also representative of our commitment to good, clean and transparent government.
I wish to end by reminding us all that in this month of celebrating the life and times of OR Tambo, let us be inspired by his commitment and selflessness for the bigger cause of a non-racial, non-sexist, democratic and free country, that is underpinned by the values of accountability and people-centredness.
Together, we can do more!
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