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Western Cape Premier Helen Zille condemned the leaking of a preliminary report into her government's communications contract and defended the tender on Sunday.
In the draft report, Public Protector Thuli Madonsela reportedly found that the tender awarded to advertising agency TBWA/Hunt Lascaris in 2010 to centralise communications was invalid.
Madonsela's report was leaked to newspapers a week before a deadline for the province's response.
“This in itself is highly irregular,” Zille said in the DA's newsletter, SA Today.
It prejudiced the province's right to rectify what it described as material legal errors in the draft report, before the report was finalised.
“Without casting aspersions on the Public Protector herself, we believe this premature leak prejudices the administration of justice and compromises our rights,” she said.
Zille said repeated attempts to contact Madonsela had failed, and so the province had to publicly state its case.
“Should the draft report’s material errors in law not be rectified in the final report, we will take the findings on review to the high court,” said Zille.
It was accepted by all parties that there had been no corruption whatsoever, “nor any evidence of political involvement, interference or manipulation in the procurement process”, she said.
However, the report had found that two of the six people on a tender bid evaluation committee Ä the premier's special advisers, Ryan Coetzee and Gavin Davis Ä should not have been there.
It found their involvement was unlawful, that the contract was rendered invalid and its termination was required, Zille said.
“According to our senior counsel, advocate Geoff Budlender, this conclusion is legally flawed and cannot be sustained,” she said.
There was no clause in the Constitution, the Public Finance Management Act, the Treasury Regulations, or the Accounting Officer’s System that explicitly or implicitly prohibited the involvement of special advisers in the bid evaluation process.
The Western Cape government did not have the legal power to terminate the contract, Budlender told Zille.
It would have to apply to the Cape High Court, but the court would “inevitably find that considerations of public interest, pragmatism and practicality lead to the conclusion that the award of the tender should not be set aside,” Zille quoted him as saying.
The court application would result in fruitless and wasteful expenditure.
City Press reported that the contract amount was capped at R70
million a year for two years for “ongoing costs”. It also provided R1.5m for “once-off deliverables”.
Zille contested the value of the contract.
“Since the contract was brought into effect, less than R6m has been spent on communications with the agency,” she said. TBWA had received less than R1m from the contract.
The National Education, Health and Allied Workers' Union called for Zille's resignation.
Madonsela had been explicit in concluding that the tender amounted to “improper conduct and maladministration”, it said.
“The DA and its leader in particular were aware of its irregularity and proceeded to endorse it even after the objections of the provincial treasury,” said Nehawu.
“We call for an investigation on the prevalence of “tenderpreneurship” in the Western Cape and all DA led municipalities.”
Proper governance and financial management principles had been neglected in the tender, it said.
In her letter, Zille dismissed calls for her resignation as “normal political posturing” as no corruption had been found.
She and Madonsela would meet this week to discuss the report, she said. - Sapa