It's a sad tale of rules broken and money nearly squandered, but not a story of bribery and corruption. At least not yet – and probably never, for lack of further investigation. But the saga of the police, the businessman and the dodgy lease deals could still end on a happy note, believes Public Protector Thuli Madonsela. By PHILLIP DE WET.
Unless somebody else picks up the ball – and there really isn’t anybody to do so – nobody will be going to jail for the humongous stuff-up that was the SAPS’ attempt to move into new office buildings in Pretoria and Durban. Businessman Roux Shabangu won’t even be blacklisted or prevented from doing business with the government again (although he came perilously close) and it’ll be up to police minister Nathi Mthethwa to decide how to deal with what was, at the very least, a substantial administrative failure by police chief Bheki Cele.
In fact, the only head the Public Protector even hints should roll for the R1.78 billion police buildings leasing saga is that of public works minister Gwen Mahlangu-Nkabinde, who manages to come off worse than anyone else in a long line of civil servants who failed in their duty, wasted taxpayers’ money, undermined public trust and generally didn’t cover themselves in glory. Everyone else involved, mostly officials of the department of public works and the police, are to be subjected to nothing more than internal reviews. Mahlangu-Nkabinde, on the other hand, didn’t feel the need to cooperate with the investigation, and either has a remarkably poor memory or tried to lie her way out of the consequences. Madonsela would like action against her, where “action” is ill-disguised code for “fire her”.
But though she isn’t leaving a trail of bodies in the wake of her investigation, and has arguably let some people off the hook, Thuli Madonsela has harsh words about systems and processes and what needs to be about them. (Hint: Following the rules as they stand is a good start.) Because, as she said from the beginning of the process, the really important thing is to make it harder for anyone to waste taxpayers’ money in future.
In her final report released on Thursday on the now partially-aborted attempt to lease the Middestad building in Pretoria and the Transnet building in Durban to the police, Madonsela makes no findings of criminal action. She can’t explain why so many people acted in such a peculiar fashion, she says, but there just isn’t proof of bribery or corruption to pass on to prosecutors.
“We debated the issue of a finding of criminality,” she says, and her detailed report shows efforts to investigate what could be construed as criminal activity. Ultimately, though, she says, “If I refer to the [National Prosecuting Authority] it cannot be on a hunch, I have to refer when I have done an adequate amount of work”, and when there is clear evidence to hand over. That’s the tricky bit, of course. The NPA does not do its own investigations, not since its investigative unit, the Scorpions, was disbanded. The replacement, the Hawks, is part of the police itself and has proven to be a wee bit unwilling to subject itself to independent outside scrutiny on this matter – never mind internal investigation. And the office of the Public Protector, though it isn’t supposed to ignore criminal acts when it stumbles across them, doesn’t have a mandate to investigate them either.
There is, of course, the Special Investigating Unit, which is already knee-deep in it thanks to investigative support it lent to the Public Protector on the matter. The SIU, though, investigates at the behest of the President. That would the President who watched closely as president Thabo Mbeki was dragged into a nightmare when the Scorpions started digging into the affairs of then police chief Jackie Selebi. If you’re the betting type, don’t count on Jacob Zuma asking the SIU to look into this one.
Though we may never know why everyone was so anxious to do business with Roux Shabangu (sometimes at a cost more than three times the market average), at least we now know why he seemed to know exactly what the police needed before anybody else did: He asked. Specifically, he asked officials at the department of public works, on a regular basis, who may be needing what kind of office space. This, he told investigators, is how business is done. Madonsela begs to differ, and would like that kind of chummy behaviour to stop. “We think it defeats the open tender because it gives people insider [information],” she says.
Perhaps if Shabangu had not been privy to such information, the police wouldn’t have tailored its requirements exactly to the buildings he managed to secure – twice. That’s probably too much to ask for, which is why Madonsela is also unsubtly suggesting that various administrators should start doing their jobs. Such as counting.
“… the [department of public works] must implement measures to ensure the verification of the floor space offered by service providers, prior to any lease agreement being concluded,” reads one section of her report. This of a government department that exists primarily to build buildings or enter into lease agreements.
Mostly, though, Madonsela wants the national treasury to make sure individual departments follow procedures, and that the police don’t flaunt the rules and regulations of procurement. The underlying message is that the infrastructure exists to keep taxpayers’ money safe, it’s just that not everybody feels the need to comply.
At least three people lied to Madonsela during the course of her investigation, including either a former director general or a current minister of public works, either the minister again or Shabangu, and either Cele or some of his deputies. At least one bureaucrat was hard done by: Irene Nel, a functionary in the KwaZulu-Natal offices of the public works department who dared tell her superiors that they were courting trouble and was victimised for it. There was an attempt to victimise at least one journalist: Mzilikazi wa Afrika of the Sunday Times, who was taken into custody on spurious charges suspiciously shortly after helping to break the story of the police buildings.
That isn’t of primary concern to Madonsela, though. In her findings of the impact of the various cases of maladministration and unlawful behaviour that adds up to this mess, she highlights bigger problems. A “significant potential monetary loss to the state and prejudice to the South African taxpayers”, “loss of public confidence in the [police and department of public works] and organs of state in general” and “the perception of potential service providers that they cannot expect fair and equal treatment from organs of state”.
Translation: the people think the state is corrupt, and even if it isn’t, the people nearly paid a heavy price. Perhaps worse, officials also think the state is corrupt, and that they will suffer the consequences should they try to do anything about it, and they aren’t wrong.
The good news is Madonsela and her office have emerged with a seriously buffed image and she has promised to stick to it to make sure her recommendations are implemented. Not that she thinks such effort would be required.
“I believe I am on the same side as government,” she told the media briefing on Thursday, unscripted. “We all want to make sure public resources are not wasted, they are not the subject of incompetence, arrogance and abuse of power.”
And if the president and the government should choose not to act on her recommendations? Just hypothetically speaking? Then she’ll go to Parliament Madonsela says, the body she reports to and the body responsible for keeping the executive in check. And if that doesn’t work? Well, then she’ll be happy to provide the courts with help and information, should anybody choose to go to court to force the issue – though going to the courts herself is not an option. If that fails there is always the court of public opinion and the media, or, as Madonsela put it more gently, “dialogue”. It’s our money, after all. DM
Photo: Public Protector Thuli Madonsela at the press conference on Thursday 14 July 2011. (Daily Maverick)