Johannesburg - In an unusual display of authority, the Special Investigating Unit has taken one of its cases to court to remove a chief executive of a government parastatal.
And the SIU has dragged disgraced former communications minister Dina Pule into the court battle, saying her interference is the reason why Zami Nkosi got the top job at the Universal Service Access Agency of South Africa (USAASA) in March last year.
It wants the Pretoria High Court to set aside Nkosi’s contract – and force the agency’s board to appoint one of the three candidates shortlisted in 2012, or re-advertise the post.
The SIU filed the application last week, just four months after kicking off their investigation into Nkosi’s appointment and irregularities in the spending of public funds at the agency. President Jacob Zuma gazetted the probe in March.
The agency handles countrywide connectivity and is responsible for the country’s migration from analogue to digital TV and is likely to get a R2 billion subsidy for this process.
SIU spokeswoman Pearl Banda confirmed that the court application had been filed last week, and that it would be heard in August.
Aside from Nkosi; Pule, USAASA and the new minister of communications are listed as respondents.
Banda could not confirm if any of them were opposing the matter.
Contacted on Saturday, Nkosi would not comment, while Pule could not be reached.
Agency spokesman Khulekani Ntshangase did not respond to queries either.
But in the affidavit supporting the application, Paul Modipa, programme manager at the SIU, alludes to the unit approaching the court.
The SIU had completed their investigation on May 22, said Modipa, but had to assess whether USAASA would apply to set aside Nkosi’s appointment.
“When it became clear that USAASA would not do so, the SIU had to decide whether it would do so and it took advice from counsel on how best to go about setting aside the appointment,” states Modipa in the court papers.
“The SIU has a duty to approach this court to set aside unlawful conduct so as to prevent loss or damage to public entities.”
He states that decisions made by Nkosi were invalid but legally binding – and if his contract is not set aside soon Nkosi, whose contract is still valid for two years, has “real potential to cause loss or damage to USAASA”.
Nkosi’s contract is invalid, according to Modipa, because the appointment was made under the advice and dictates of Pule when she had no statutory (power) under the Electronic Communications Act to advise or dictate.
Modipa states that Pule is cited because “she might have an interest in this application as a result of allegations made about her in this affidavit”.
He refers to two sets of meeting minutes showing that the former minister interfered in the selection and appointment of the chief executive.
Pule was recalled last year following a public protector report into corruption and conflict of interest allegations against her.
Nkosi was appointed as chief executive in March last year and took office on April 1 last year.
According to Modipa, the post had been advertised in July 2012. Candidates needed a post-graduate degree in Economic and Management Science or Communication Science as well as 10 years experience in executive and strategic management.
Of the 100 applicants, 50 were shortlisted.
The board then constituted a nominations and appointments committee to identify suitable candidates.
Five candidates were interviewed and three were recommended to the board for approval. Once this approval took place the committee would consult with the minister.
But, states Modipa in the court papers, instead of the consultation taking place, the chairperson of the board had a bilateral meeting with the minister in November where Pule did not support the recommended candidates and refused to approve any of the those selected.
“The minister advised the chair to recommend to the board to restart the process of finding a CEO again and to do so by following a headhunting process,” state the papers.
The board then followed Pule’s dictates.
Leago Human Resources placements were procured to assist the board to headhunt a chief executive. Nkosi was one of the five candidates it presented and got the job despite not being suitably qualified for the post of chief executive, lacking the experience and faring poorly in a competency assessment.
According to Modipa, within Nkosi’s year at the agency, he has already made several controversial decisions.
“In the course of our investigations, which I led, we found... that Nkosi has been making irregular and or unlawful appointments and promotions of certain officials,” states Modipa.
He contends that Nkosi unlawfully created and filled new positions which do not exist in the approved personnel structure, gave certain staffers higher remuneration packages than other officials occupying the same or similar positions or unilaterally upgraded posts.
Modipa lists four employees in his court papers who have benefited from Nkosi’s decisions.
In one instance, a senior legal manager is employed as a director but is being remunerated at the level of executive manager.
In another instance, the communications officer post was upgraded from level 10 to level 12 despite the appointee not being shortlisted or meeting the minimum requirements.
The appointment was also allegedly made against the advice of the executive manager for corporate services.
The SIU investigation in Nkosi’s appointment and irregularities at the agency follows a forensic investigation done by auditors SizweNtsalubaGobodo, which questioned Nkosi’s appointment and his relationship with the board’s chairwoman, Phumla Radebe.
In April The Sunday Independent reported that Nkosi landed his top job despite being at the centre of a Hawks probe into several multimillion-rand tenders following his stint at the City of Joburg’s waste management service, Pikitup.
Nkosi has also been implicated in the dismissal of the executive manager of programmes, Mmatlou Morudu, who in court papers last month alleged that he lost his job for not dishing out a contract on the instruction of Luthuli House.
The alleged threat was made by agency chairwoman Radebe months before he was fired.
Radebe allegedly told him “not to be sassy when being instructed by Nkosi as such instructions come from Lathuli House (sic) and should he not |follow them he would be shown the door”.
Radebe has not responded to the allegations.
Morudu had refused to carry out Nkosi’s instruction to fund Cell C R500 million to upgrade the communications network at eMalahleni Municipality.
The contract is also being probed by the SIU.