Former MEC of Human Settlements in the Free State, Mosebenzi Zwane, slated the testimony of his former juniors. They include the former Head of Department (HOD) of Human Settlements in the Free State, Mpho Mokoena.
Zwane depicted himself as a “layperson politician” with limited insight into legal matters. As during his prior appearance, he laid much of the blame at the feet of his subordinates.
He picked, in particular, on Mokoena who implicated Zwane in putting undue political pressure on department officials so they would do his bidding and flout the law.
“I find that, to be quite frank, his relationship with facts is a bit fractured,” testified Zwane on Monday 12 October 2020 at the State Capture Inquiry.
However, Zwane himself was unwilling to accept as illegal the advance payment of funds to contractors in the Free State’s wasteful R1-billion housing project.
“There can be little doubt that what was proposed and the manner it was implemented was completely illegal,” said legal team head and evidence leader Paul Pretorius SC.
The advance payment scheme in this specific project was confirmed as illegal by a decision of the high court and an investigation initiated by the Free State Human Settlements Department itself.
The department spent some R600-million with no value received in return, as reported by the current HOD of Human Settlements in the Free State, Nthimotse Mokhesi.
Zwane asserted, “Chair, the advance payment or prepayment as it is, in terms of the South African law, is not an illegal issue.”
He cited Treasury regulations and the Public Finance Management Act (PFMA) about advance payment, and the statutory requirement for a contract.
“Well, there was no such contract,” said Pretorius.
Quick to deflect any criminal liability, Zwane added, “From where I am seated I think it will be unfair of this commission to want to say [to] me, as a layman politician there, I should have taken the responsibilities of an accounting officer who himself had actually signed this document.”
At this both Pretorius and Chairperson Deputy Chief Justice Raymond Zondo interjected, almost in unison, with the words: “But Mr Zwane…” Zondo pressed Zwane on his oversight duties, and whether he conducted himself properly.
Zwane shirked significant responsibility and soon took a stab at former HOD Mokoena and other housing officials who accused him of bullying them into forcing prepayment (or, advance payment) from late 2010.
Zwane slammed Mokoena further, highlighting he was liable as the accounting officer in terms of the PFMA. Zwane repeated he trusted the input of then deputy director-general in the Department of Agriculture in the Free State, Mmuso Tsoametsi.
Following a departmental meeting in October 2010, Tsoametsi was told to produce a report. Zwane presumed, in doing so, Tsoametsi considered the legality of the advance payment approach (even though this was not an express area of research).
Previously, Tsoametsi testified he produced a document which was emphatically not a legal opinion. “What do you say about that evidence?” asked Pretorius. “I have since seen that,” said Zwane.
Zwane argued the scope of Tsoametsi’s report was broad. Therefore, at the time, Zwane presumed Tsoametsi would assess the legality of the advance payment proposal by default.
“As of 25 November 2010, here is a lawyer bringing to me a document signed by himself, it means happy,” said Zwane.
Pretorius pressed Zwane on why, if he was concerned about the legality of the proposal for advance payment, he did not obtain a legal opinion from the legal adviser in the premier’s office.
Zwane indicated he had no reason to imagine Tsoametsi’s report was deficient. Pretorius quizzed Zwane on why Tsoametsi was entrusted with compiling a report which would address the legality of advance payment, when Tsoametsi never practised as a lawyer.
In his defence, Zwane described Mokoena and housing chief adviser Mphikeleli Kaizer Maxatshwa as others knowledgeable on legal matters. He remarked on Mokoena’s testimony, criticising Mokoena for depicting Zwane as “a monster” who wanted advance payment executed no matter what.
“He said then to me: look, we have discussed about this. This is my plan and it’s going to happen,” Mokoena testified. He claimed Zwane told him if he did not sign approval for the plan’s implementation, then Mokoena might as well resign. Mokoena alleged Zwane threatened him with “abject poverty”, saying to Mokoena he would be “poor, you’ll be like grey, like dust”.
“People who know me as a person Chair, in these different departments, I don’t seek working with the officials by iron fist. I always ask, ‘Can we do this?’ If they say, ‘No.’ I say, ‘Why? Tell me.’ If there are legalities, I abide by the decision of the collective,” countered Zwane.
After about four hours of testimony, Zondo adjourned. Zwane will return to continue his evidence at a date yet to be announced. Dr Ben Ngubane is due to testify on Tuesday 13 October 2020. Proceedings are due to begin at 10am. DM