South Africa

AMABHUNGANE

Corruption Country: The Durban whistle-blower, the assassination and the dodgy R30m ‘debt’

Corruption Country: The Durban whistle-blower, the assassination and the dodgy R30m ‘debt’
Images: iStock / Unsplash / Wikimedia

Ethekwini municipality’s attempt to hand a dubious R30m ‘settlement’ to a tenderpreneur — and punish the whistle-blower who exposed its questionable origins — is unravelling thanks to a bungled court case.

An unresolved murder and attempts to silence a whistle-blower are at the heart of a court drama around eThekwini municipal tenders that has the city in a tailspin.

In November 2017, gunmen arrived at the New Germany home of Nathi Nkwanyana, a City revenue protection manager, and shot dead his 23-year-old son, Ntuthuko. In papers later filed in court, Nkwanyana, an electrical engineer who has worked for the City for 27 years, said the hail of bullets that killed his son was meant for him.

On 25 August this year, to public consternation, the Durban sheriff arrived at the municipality’s electricity department and attached assets including computers, telephones and vehicles. 

durban whistle-blower

This followed a R30-million high court judgment against the municipality in favour of an obscure contractor, Daily Double Trading 479 CC (trading as Pholobas Projects), which had its contracts with the electricity department cancelled in 2013.

Unlike the seizure of the municipality’s equipment, the murder of Nkwanyana’s son didn’t make headlines, but now a court case involving Pholobas, the City and Nkwanyana has again raised questions about the unsolved killing. 

Nkwanyana clearly believes there is a connection, though no evidence has emerged that Pholobas was involved.

The legal saga around the R30-million judgment has also shone an embarrassing spotlight on the municipality’s internal machinations, notably:

  • Its belated decision to turn on Nkwanyana and discipline him for red-flagging the Pholobas contracts;
  • Its unaccountable offer of a R30-million settlement to Pholobas; and
  • Its contradictory efforts to backtrack on that payment, but effectively sabotage its own case by refusing to disclose how the settlement came about.

Last week, newly installed municipal manager Musa Mbhele was forced to petition the Supreme Court of Appeal to avoid the ignominy of paying out R30-million to Pholobas, a close corporation owned by one Bekezela Joseph Ngcobo, who is said to be “politically connected”.

The contested payment was effectively a damages award claimed by Ngcobo as a result of his alleged blacklisting as a contractor.

The merits of the case were never argued and the award was based entirely on a written offer of settlement, which no one at the City wants to take responsibility for.

Ngcobo’s court victory has officials and opposition parties livid over what appears to be, at best, monumental bungling — and at worst, a stitch-up.

The story goes back on dealings over a decade and Nkwanyana believes his son was murdered in a hit meant for him after he blew the whistle on Pholobas.

The murder happened on a weekday afternoon at the Nkwanyanas’ suburban home as family members milled around doing chores and homework. Not long after Nkwanyana arrived home, there was a rattle at the front gate and Nkwanyana, thinking it was Ntuthuko’s friends, called to his eldest son to attend to the visitors. 

Six deafening gunshots

Nkwanyana didn’t pay attention until he heard six deafening gunshots, ran towards the sound, and saw his son lying on the ground. As Nkwanyana raced to him, the killers fired two more shots and sped off. Ntuthuko was shot six times in the chest and gasped “Baba, Baba (father, father)” before dying in Nkwanyana’s arms.

On 18 September 2017, two months before the shooting, Nkwanyana had been suspended by the City for allegedly unlawfully terminating the Pholobas contracts in 2013.

Two months before that, on 21 July 2017, Pholobas’ Ngcobo had gone to court claiming R44-million from the City, having mysteriously gained access to an internal report on Nkwanyana to support his case — a report that directly contradicted an earlier one.

After the shooting, Nkwanyana and his family went into hiding, and in Ngcobo’s court battle with the City, Nkwanyana filed papers saying his son’s murder was meant to “silence me forever”.

Ntuthuko had “no known enemies, but resembles me in height and build”, Nkwanyana said.

He alleged his suspension from the municipality was on trumped-up charges aimed at removing him from the picture after Ngcobo’s company launched legal action against the City. Contracts involving Ngcobo, he said, “were difficult to manage because I was aware that the company is known to have political affiliations”.

Let’s rewind to 2012 when municipal officials, including Nkwanyana, took issue with Ngcobo’s company which had contracts to disconnect illegal electricity connections. Nkwanyana said Pholobas was overbilling the City — and the evidence shows it was.

Nkwanyana’s investigation saw the company refund the municipality R102,000 for billing for services not rendered. Other irregularities were identified and referred to the City Integrity & Investigations Unit (CIIU).

Blacklisted

In July 2013, the CIIU report recommended that “Pholobas Projects contractors, its directors or members… be removed from the Municipality’s database and be banned from receiving any Council jobs, through an application to the Blacklisting Committee”.

The company’s contracts were suspended and, on recommendation from Nkwanyana, the Municipality’s Bid Adjudication Committee resolved to cancel them. The company was also disqualified from a new contract it had bid for. It appealed that decision, but an external arbitrator ruled that moves against Pholobas were well grounded.

In July 2014, Pholobas took the matter to the high court in a bid to stop the blacklisting and to set aside or review the committee’s decision. At the time, the City opposed the application and Nkwanyana prepared a detailed affidavit, spelling out the basis of the steps the City had taken against Pholobas.

In a later affidavit, Nkwanyana said, “I am uncertain as to whether Pholobas’ application was dismissed or whether it was simply not finalised on some other basis. I am however certain that Pholobas, and certain individuals within the Municipality, thereafter conspired to perpetuate a fraud on the Municipality.”

The 2014 court file has disappeared.

Disciplinary action

Then, in January 2015, a new report by the CIIU recommended disciplinary action against Nkwanyana, saying he had a vendetta against Ngcobo and that his actions had prejudiced the municipality, which would incur legal fees and was at risk of a civil claim.

In response to the CIIU’s second report, the then deputy head of eThekwini’s customer and retail services — Nkwanyana’s manager — refuted the allegations in an internal memo and heaped praise on Nkwanyana’s defence of the public purse.

​No disciplinary action was taken at that stage.

In 2016, the ANC’s controversial Zandile Gumede became mayor, bringing with her a new set of alliances and priorities.

In July 2017, Pholobas was back in court, armed with the CIIU’s second report, with Ngcobo claiming the cancellation of his contracts was unlawful and demanding R44-million in compensation for his blacklisting.

In September 2017, Nkwanyana was suspended. Two months later, his son was shot dead.

The City initially opposed Pholobas’ new application, but on 2 February 2018, the attorney representing the City, Siphiwe Moloi, wrote to the attorneys for Pholobas, stating, “We are instructed to offer as we hereby do, the sum of R30 000 000.00 in full and final settlement of your client’s claim…” 

The offer was immediately accepted, but clearly there was some dissension within the City, because by the end of February, no payment had been made, despite demands by Pholobas’ attorneys.

In March 2018, Pholobas applied to have the settlement made an order of court, but the judge involved, Johann Ploos van Amstel, refused to do so without seeing the signed authority of the City manager. Instead, he demanded that Moloi, the City’s attorney, as well as the City manager at the time, Sipho Nzuza, file affidavits explaining on whose authority the written offer to settle for R30-million was made.

When the matter came back before the judge a few weeks later, he was unsatisfied with their explanations and suggested the matter be referred to the National Director of Public Prosecutions.

Moloi said he was instructed to act in the matter as the municipality’s attorney and had meetings with City representatives around the possibility of settlement. He said he interacted with the City’s legal advisers, but wasn’t part of “internal processes where the municipality’s course of action was decided upon”.

Replying to Ploos van Amstel’s demand for more information, Moloi described communications between himself and the City as “privileged”.

Moloi then claimed the matter had never been “conclusively addressed as the agreements remained unsigned and incomplete”.

Nzuza, in his affidavit, said that shortly after his appointment in May 2017, he was asked to consider the settlement, but that his “delegations” extended only to R5-million. He took the view that the matter should have gone to the “full council”, but to his knowledge the council had never approved the settlement. 

He claimed not to know who authorised the settlement offer.

Application to intervene

When the Pholobas matter came before court again in October 2018, Nkwanyana launched an application to intervene in the case.

His affidavit said: “My suspension was a means to remove me from the system; to prevent the truth of the matter coming out by means of an affidavit which I would have deposed to, derailing the settlement agreement.

“The murder of my son had the purpose of silencing me forever. I might not survive this matter. I have given instruction that evidence in my possession be taken under commission so at the very least the truth will prevail in the event of my untimely and unnatural demise.”

Nkwanyana set out the controversial history of the Pholobas contracts in detail and denied he had ever been motivated by a feud with the company’s owner, Ngcobo.

Ngcobo persisted with his court action and, on 4 November 2019, the issue came before a judge who referred the matter for trial to decide solely whether a binding agreement was concluded. 

On 4 October 2021, the matter came before acting judge Murray Pitman.

Prior to that, Nkwanyana’s attorneys withdrew, seemingly because he could not afford to persist with the intervention.

The City put up a limp defence. It did not cross-examine Ngcobo or lead any of its own witnesses about the settlement offer, relying instead on a technical argument.

In April this year, Pitman ruled in favour of Pholobas, ordering the City to pay up. The judge was unimpressed with Moloi’s affidavits, criticising them as “disingenuous and inconsistent”, and expressed surprise that the City hadn’t called Moloi to the stand to explain himself. 

Whatever the reason for the City not calling him, Moloi’s 2 February 2018 letter regarding the R30-million settlement stood as “admitted as true and stands uncontradicted”, the judge found, adding that the “inference is unavoidable” that Moloi had “a valid and legitimate instruction by duly authorised representatives” of the City to make a settlement. 

Pitman said despite the protestations in Moloi’s affidavits that the settlement agreement was not signed, the offer made on 2 February 2018 did not depend upon, or make a settlement conditional upon, the signature of a written document. 

On 28 June 2022, the City submitted an application to Pitman to appeal against his judgment. On 24 August 2022, he refused leave to appeal. 

City’s goods attached

The following day, the sheriff attached the City’s goods to recover Ngcobo’s R30-million debt by sale in execution, incensing unions, politicians and the new City manager, Musa Mbhele, who on 29 August submitted a petition to the Supreme Court of Appeal to appeal Pitman’s ruling.

In the petition, Mbhele tried hard to undo the City’s poor showing in the high court. He argued that Pitman misdirected himself because the Pholobas damages claim was bad in law: “In these circumstances, I am advised that the High Court should have refused to ‘rubber-stamp’ the manifestly unlawful settlement agreement. The High Court was duty-bound to inquire into the lawfulness of that settlement agreement.”

He also said Moloi was not authorised in writing to make the settlement, which Mbhele argued was a legal requirement. 

Mbhele argued that just because Moloi was never called as a witness did not mean he had received due and valid authority from the City to make the settlement offer, which had been the inference drawn by judge Pitman. 

Mbhele said it was probable that Moloi could not identify the official who authorised him to make the offer — “because no such official exists”. He criticised Moloi’s reliance on client privilege, noting that “written authorisation to make an offer to settle can hardly be confidential or privileged” and alleged it was more probable that Moloi “acted on a frolic of his own”.

He did not explain why the City had never waived its client privilege, as it was entitled to.

Nkwanyana’s lonely battle

Meanwhile, Nkwanyana has continued his lonely battle.

A detailed report delivered by Nkwanyana to eThekwini executive committee members in May 2022, following the Pitman judgment, says that Pholobas’ original claim had no prospects of success whatsoever.

It argues, “The only conclusion which can be arrived at on an assessment of the objective facts of this matter is that a person or persons within the employ of the Municipality colluded with Pholobas to perpetuate a fraud on the Municipality: initially by creating the Second CIIU Report, which ignored all the relevant facts, misstated others and arrived at an unsustainable conclusion, and thereafter by agreeing to settle Pholobas’ claim.”

After two years of being suspended, Nkwanyana’s suspension was lifted and he was seconded to the solid waste department, pending the finalisation of investigations into him.

Nkwanyana returned to work on 22 July 2019 — with bodyguards. 

Disciplinary issues against him remain unresolved. In his report to the executive committee he says, “It is difficult to conclude other than that the decision taken to discipline me has been actuated for an ulterior, mala fide purpose.” 

The City’s response to a list of questions was a curt one-liner: “This matter is currently before the court. Therefore we cannot give comment at this stage.”

In response to questions, Moloi said he was still an attorney working for eThekwini, and that the matter was still in litigation and he could not comment without the City’s say-so.

Through his lawyer, Ngcobo said the matter was still before court and he did not intend to deal with “serious and defamatory statements allegedly made to the executive committee of the eThekwini municipality, save for recording that such averments are expressly denied”.

Simo Maduma, Nkwanyana’s lawyer, said his client was not allowed to speak to the media. DM

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Comments - Please in order to comment.

  • Alan Jeffrey says:

    Thank you, thank you, thank you for this article DM. For this alone you deserve the unwavering support of the people of South Africa of all races who are sickened by the criminals who inhabit the corridors of power in the Durban Metro. If ever an administration needed to be suspended immediately and an Administrator appointed it is Durban Metro! Nathi Nkwanyana is a brave man-a hero who deserves to be supported at the highest level. The brutality, greed, and lack of morality of this evil clique that has nearly destroyed our once beautiful and proud city of Durban is beyond understanding.

  • Hilary Morris says:

    The sheer scale of corruption in eThekwini beggars belief. Pity the poor individuals with integrity and honesty – they are a very lonely few.

  • Gazeley Walker says:

    And where are the opposition councilors in this process? Why are they not ensuring that their constituents, or those they purport to represent, are informed of this possible criminal municipal actions? I would ask the same question of Dr Surve’s local morning and afternoon Durban newspapers – why has there not been a report or comment in the local press? They claim daily in their publications that “WE WILL NOT BE SILENCED”. Given their silence or lack of reporting on this issue they possibly do not need external parties to try and silence them. They just fail to provide the citizens’ of Durban with quality investigative reporting. DM, please continue to keep your readers updated on this process.

  • Hermann Funk says:

    This is an ideal opportunity for the President to prove that he is serious about protecting whistleblowers. Or is that promise another attestation that he is just playing to the gallery and can’t be taken seriously?

  • John Counihan says:

    The Ethekwini municipality probably is the ultimate example of the South African rot: incompetent and corrupt in the extreme, slowly but surely destroying greater Durban. What can one say about the Ethekweni ANC RET faction cadres who shortly after election troop to Inkandhla to seek advice from their patron, JZ? Some say, surely they realise he is a treasonous crook? And the answer is, of course they do! That’s why they are dying for JZ to rise up again, so they can partner him in the next round of grand looting. Horrific!

    • Alan Jeffrey says:

      Horrific indeed and for me this is the most bizarre and astonishing statement in the whole affair.
      “The newly elected leadership of the ANC in KZN announced it will visit Jacob Zuma in Nkandla on Sunday to seek guidance and wisdom!”
      I am at a loss for words….

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