Sisulu and suspended Amatola water chief both exposed by cover-up for union king-maker
Human settlements, water and sanitation minister Lindiwe Sisulu and the suspended Amatola Water chief executive Vuyo Zitumane are pointing fingers at each other over the reinstatement of an Amatola union boss who was given his job back despite being found guilty of five disciplinary charges, including not disclosing a previous conviction for armed robbery.
An amaBhungane investigation into the turmoil at Amatola Water suggests Human Settlements, Water and Sanitation Minister Lindiwe Sisulu and suspended Amatola chief executive Vuyo Zitumane both connived to achieve the reinstatement of a powerful shop steward who had been booted out following an investigation by the Amatola board.
In September 2019, Sisulu and Zitumane reinstalled Victor Totolo as a full-time shop steward at Amatola Water after he had been dismissed in February 2018.
Evidence obtained by amaBhungane suggests Sisulu and Zitumane cynically disregarded the deep concerns raised by the board over the move.
It suggests that both acted to prop up their support from Totolo and his union, the South African Municipal Workers Union (Samwu), which had embarked on a strike at Amatola.
But in April 2020, Zitumane was suspended on Sisulu’s instructions, and since then, the two women have traded legal threats.
In an affidavit, Zitumane accused Sisulu and her advisor Mphumzi Mdekazi of trying to pressure her into using a specific service provider and suggested this was connected to debts Mdekazi had allegedly accumulated in support of Sisulu’s political advancement.
In response, Sisulu announced that she is suing Zitumane for defamation, claiming the allegations levelled against her and her officials are “gross and ridiculous fabrications”.
But amaBhungane’s investigation shows that, until their fallout, Sisulu and Zitumane were on the same side of a bitter battle with the former Amatola board, which, under board chair Nokulunga Mnqeta, had taken a hard line on Totolo.
It also reveals evidence that it was Sisulu who actually took the decision to reinstate Totolo, although it was Zitumane who laid the groundwork and implemented the minister’s decision.
On top of this, we can show that the minister dismissed a detailed appeal by the Amatola board to reconsider Totolo’s reinstatement.
This is significant because a forensic investigation commissioned by Sisulu herself and carried out by a firm appointed by her, Open Water Advanced Risk Solutions, has reportedly blamed Zitumane for the “irrational” decision to reinstate Totolo.
According to a 10 May 2020 report in the Sunday Independent, Open Water found that Zitumane had “irrationally facilitated the retrospective reinstatement of Totolo with full benefits despite internal and external legal forums upholding the decision to fire him”.
Amabhungane has previously suggested that Open Water might be conflicted in relation to some of the matters at issue at Amatola.
Amatola’s disciplinary committee and later the Commission for Conciliation, Mediation and Arbitration (CCMA) found Totolo guilty of lying about his previous employment and academic qualifications; providing a fake reference for a non-existent previous job; refusing to cooperate with the investigation into these allegations; and lying about not having a criminal record (comprising an eight-year sentence for armed robbery).
Totolo took the matter to the Labour Court, but it was never finalised because in September 2019, Sisulu and Zitumane reinstated him. Both, it would seem, turned a blind eye to the serious charges against him.
The conflict between Amatola and Totolo goes back at least four years, but it is necessary to traverse it in some detail to understand how history repeated itself.
The 2016 strike
In May 2016, the then chair of the Amatola Water board, Mnqeta, was arrested by the Hawks on what appear to have been trumped-up charges.
Mnqeta was accused of using funds from the Amathole district municipality development agency (Aspire) to settle a R310,000 legal bill she incurred while fending off misconduct charges brought against her by the Aspire board. Before becoming chair of the Amatola Water Board, she had served as the chief executive of Aspire.
Mnqeta argued the payment was part of a settlement reached between the parties and the Hawks charges were finally dropped in 2018.
However, in May 2016, Totolo and his union, Samwu, seized on Mnqeta’s arrest to lobby then minister Nomvula Mokonyane to demand Mnqeta’s removal from the board.
In September 2016, lawyers acting for Mnqeta wrote to Totolo to demand that he cease his campaign to have the chair removed or face being sued for defamation.
The threat led to a humiliating climbdown.
Samwu launched a strike leading to water supply disruptions and the minister was forced to fly to the Eastern Cape.
To bring the strike to an end, Mokonyane agreed to set up a task team to look into the workers’ concerns and Mnqeta was instructed to withdraw her lawyers’ letter to Totolo.
But in March 2017, Totolo was suspended and charged with two counts of gross dishonesty relating to the allegedly fraudulent backdating of his appointment as a paid full-time shop steward. The allegations also implicated Amatola’s then chief executive and the human resources manager, who were subsequently fired.
Amatola Water appointed a firm of attorneys to prosecute Totolo. It emerged that in July 2016, Amatola Water had engaged audit firm PwC to conduct a review of Totolo’s CV, which led to the discovery that he failed to disclose his criminal conviction along with other misrepresentations.
Five other disciplinary charges were added to the two Totolo already faced and he was convicted on all by an external presiding officer, advocate Sakhele Poswa. In March 2018, another lawyer considered an internal appeal, but confirmed the conviction and dismissal.
Finally, in February 2019, the CCMA confirmed the five charges relating to misrepresentations in his CV and confirmed his dismissal, although it found Totolo not guilty on the back-dating of his contract.
Though down, Totolo was certainly not out.
AmaBhungane has pieced together the events surrounding the reinstatement of Totolo from multiple sources, including Samwu, former Amatola staff, leaked documents and extensive interaction with Zitumane, the suspended chief executive.
One glaring omission has been the version of Sisulu who, as we shall see, opted to stonewall questions and obfuscate her role through her spokesperson.
Zitumane took charge at Amatola Water in April 2018, and had an early introduction to the power of the union when Samwu embarked on a 15-day strike in August of that year, an experience Zitumane described to us as her “worst induction”.
Although Totolo was dismissed by 2019, he was still highly influential and the union was still pushing for his reinstatement, based on the claim that Totolo had been victimised by the board, specifically the chair, Mnqeta.
The issue became a wedge between Zitumane and Mnqeta.
Around this time, a gap opened up between Zitumane and the board over the accounting treatment of the expenditure on lawyers involved in the investigations and prosecutions of Totolo, the former chief executive and former human resources manager.
The board had incurred what the Auditor General deemed irregular expenditure, but the board believed it had acted correctly and justifiably given the circumstances and it appears Mnqeta, in particular, was aggrieved that Zitumane had not rallied to the board’s defence.
The former chair told us: “When this allegation came up, the board wrote to the minister and national treasury requesting that the allegation be investigated. I think this matter is brought up to cloud issues.”
In this climate, things changed quickly.
In April 2019, Zitumane had signed an affidavit lodging a counterclaim against Totolo in his Labour Court appeal, but by June 2019, the Amatola chief executive was having private communications and at least one private meeting with Totolo and two other senior members of Samwu.
Zitumane told us: “Yes I met with them on a Saturday… based on their request… My success in the past turnarounds… has been based on a proactive engagement with unions and developing a trustworthy relationship… The meeting was to discuss their grievances but [Totolo’s] main interest was his reinstatement… I stated on more than one occasion that I had no authority.”
Only the board could make such pronouncements, she argued.
Totolo has a different version. He told amaBhungane: “I think around June 2019, I started getting calls from [Zitumane]. We met with her… [Zitumane] told us, ‘I looked into your issue … and you did nothing, it was a witch hunt; you were purged only because you raised issues about the chairperson’s arrest. I can resolve all these issues of yours, but all I want is support from you all in the mission I’m about to embark on… I want you to fight with me in exposing this board.’”
According to him, his reinstatement was the result of a deal struck between him, Zitumane and Samwu’s members at Amatola: The union would help Zitumane fight the then board and in exchange, she would address a list of 15 workers’ issues that Samwu had raised with her when she was appointed as chief executive in April 2018.
One of these issues was Totolo’s reinstatement. Totolo also claimed that Zitumane asked Samwu to mobilise workers to strike as part of this deal.
Zitumane denied making an about-face on her Labour Court affidavit and called Totolo “the most disingenuous human being” she had ever met.
“I signed an affidavit that was drafted by the director of corporate services based on information she had about the case which happened long before I joined Amatola Water. The element of victimisation and other aspects were never brought to my attention until around July 2019,” she said.
Though she admitted to having held meetings with Totolo and his colleagues, including at her home, Zitumane emphatically denied that she asked or encouraged workers to strike.
She told us: “The last person I would have a deal with is Victor Totolo as I owe him nothing and he owes me nothing. My listening ear to Samwu was to ensure stability and avert a strike as I had a worst induction of experiencing a 15-day strike in August 2018, that cost Amatola Water R8-million and huge reputation damage.”
Instead, Zitumane says she appealed to the new minister, Sisulu, to intervene.
“Around 10 September 2019, Samwu threatened daily to strike and I pleaded with them not to strike to [the] point I fell sick. As the board never wanted to entertain the matter, I appealed to the deputy minister to talk to the minister to come and listen to the concerns of the workers [as] there were two issues that the Board did not want to entertain: … [A] 1.5% retrospective increase and [the] reinstatement of Victor Totolo.”
She said the minister sent advisors to Amatola to listen regarding the case for Totolo and the wage increase. The visit apparently took place on 11 September, the same day Mnqeta resigned as chair.
Thanks to Zitumane, Totolo was seemingly back in, just as Mnqeta left the building.
Following the visit, the advisors requested information on the issues raised by Totolo. Zitumane prepared a briefing document.
A draft obtained by amaBhungane appears to bend over backwards to put Totolo’s case in a favourable light and ignore the counter-arguments of the board, the rulings by independent lawyers and the CCMA. Zitumane would not confirm the authenticity of the document, saying there were “many drafts”, but it appears to broadly match her own description of what was conveyed.
Notably, it claims that Totolo wrote to then minister Mokonyane about Mnqeta’s arrest in February 2016, implying he was a whistleblower. Yet Totolo himself concedes he only wrote to the minister in May 2016, after the arrest was given prominent news coverage. The same error was repeated in a legal opinion obtained by Zitumane from an advocate recommended by the union.
The draft briefing document concludes that “it is clear that there was a personal vendetta by the Chairperson [Mnqeta] against VT [Totolo]” and recommends the minister authorise his reinstatement, pending a new disciplinary process.
It seems that legally, the decision about Totolo’s return rested with Sisulu because the functus officio rule did not allow Zitumane to revisit a decision previously made by her own office.
Despite her overt support, Samwu appears to have believed that Zitumane had “played” them and launched a strike on 20 September 2019.
Three days later, on 23 September, Sisulu was in East London for an emergency meeting, following in Mokonyane’s footsteps.
The next day, Sisulu announced a deal and the day after that, the official government news agency could trumpet: “Due to the Minister’s intervention, the remaining 1.5% which has been the bone of contention has since been brokered by the shareholder… bringing an end to the strike action.”
No mention was made about the decision to reinstate Totolo, but as we shall see, that was key, as was Sisulu’s role.
Until recently the circumstances around Totolo’s triumphant return were unknown, except to a few insiders.
Then, one of those insiders leaked a memorandum, which showed the Amatola Water board’s consternation at Sisulu’s decision.
Although directly addressed to Sisulu and dated 22 October 2019, the memo from the board was unsigned and so we treated it with some caution.
When we first asked Sisulu and Zitumane about its contents in March 2020, they both pretended not to know what we were talking about.
When we asked about Sisulu’s role in Totolo’s reinstatement, both Sisulu and Zitumane attempted to distance the minister from the decision despite the memorandum explicitly stating that it was hers.
Sisulu’s spokesperson, McIntosh Polela, said Totolo’s reinstatement had “nothing to do with minister Lindiwe Sisulu. Amatola Water… are the right agency to entertain the questions from amaBhungane.”
Zitumane, who had not yet fallen out completely with Sisulu or been suspended when we first asked for comment, replied ambiguously.
She said: “The Minister requested the Chief Executive to preside on the matter as it was an operational matter and not a board matter; and the CE based on a legal opinion of circumstances surrounding the motive of investigation, procedure and discipline, reinstated Mr Totolo.”
We put it to Polela that the board memo was very clear that it was the minister who took the decision to reinstate Totolo.
For instance, the memo states: “We understand that the Minister’s decision was prompted mainly by her concern to avert a threatened strike.”
When pressed about the matter, Polela deflected. “We are satisfied that the comprehensive response that amaBhungane received from Amatola [through Zitumane] is sufficient,” he told us.
However, since the public battle between the two women ensued in May, it seems the cover-up has crumbled.
Responding to further questions from amaBhungane during May 2020, Zitumane told us in writing she merely implemented a Sisulu decision to reinstate Totolo. “The Minister after consultation with her advisors and the report I prepared, based on issues highlighted, resolved at the board meeting to reinstate Victor Totolo…”
Zitumane added Sisulu had “reiterated” that Totolo’s reinstatement was “unconditional”.
It also became clear to us that, even if the minister had been misled by Zitumane at the meeting of 23 September 2019, she had no excuse for doubling down once she received the board memo of 22 October 2019.
The memo comprehensively refuted the basis for the reinstatement and pointed out the errors of fact and logic contained in the legal opinion tendered in support of Totolo’s claims of being a whistleblower.
It also attached the findings of the various hearings against Totolo, as well as the initial 2016 ministerial task team report that recommended action be taken against him.
It is also clear that Sisulu had these issues pertinently drawn to her attention on or about 23 October 2019.
A letter, dated 24 October 2019, from the minister to the then-interim Amatola Water Board chairperson, Maxwell Sirenya, shows the minister wrote: “Following our discussions yesterday, I received advice regarding the most appropriate manner of addressing this issue. The decision taken in my meeting with the Board around 23rd September 2019 remains and must be implemented. That is, Mr Totolo must be reinstated in line with the Labour Relations Act.”
When we pointed this out to the minister’s office, her spokesperson simply refused to be drawn. “Please note that we have no desire to further engage on this matter,” Polela told us.
Both Sisulu and Zitumane appear to have undermined the Amatola board to appease the union.
Sisulu disbanded the board in January 2020, ironically for supposedly undermining her, but her hand-picked interim board only lasted until May 2020, when it too was disbanded in favour of a single administrator.
Zitumane soon fell out with Sisulu, and Totolo wasted no time in putting the boot in, delivering an affidavit in early March 2020, which exposed Zitumane’s alleged collaboration with the union against the previous board in embarrassing detail and providing fuel for the investigation against her.
Totolo remains employed as a full-time shop steward at Amatola. DM