Malema case: What the Public Protector found
Public Protector Thuli Madonsela’s On-Point tender fact file:
After receiving three complaints in July last year, Madonsela investigated allegations that the Limpopo Department of Roads and Transport awarded the On-Point tender through corrupt means and that axed ANC Youth League leader Julius Malema used his political position to influence the awarding of the tenders by the department and the Limpopo government in general.
1. The allegations Madonsela probed:
* Was the awarding of the project management unit (PMU) tender by the Limpopo Roads and Transport Department improper and in violation of the provisions of the Prevention and Combating of Corrupt Activities Act, 2004?
* Was On-Point involved in any corruption in its dealings with other service providers appointed by the department in its management of the PMU?
* Did the Ratanang Family Trust and/or JM Malema benefit improperly from the tender awarded to On-Point?
* Was the awarding of the tender to other companies referred to in the allegations, Sizani Buildit and Arandi Trading Enterprise, improper?
2. Her findings:
After perusing relevant documents relating to the procurement of the tender, interviewing officials, going through newspaper reports, consulting with the National Treasury and analysing relevant laws and records, Madonsela found that:
* The awarding of the tender by the department to On-Point was unlawful, improper and constituted maladministration.
* The bid that was presented by On-Point in respect of the PMU tender consisted of a deliberate and fraudulent misrepresentation in respect of the profile, composition, experience and therefore the functionality of the company.
* It was presented to the department that On-Point was an established and experienced establishment with management teams and professional staff that complied with the requirements of the request for proposal even though, at the time of the bid, the company existed for only a month, and had no employees or several of the purported key management and staff.
* The conduct of the head of the Limpopo roads and transport department, Ntau Letebele, in respect of the awarding of the bid to On-Point was improper and constituted maladministration.
* The conduct of On-Point as PMU of the department to enter into agreements with Mpotseng Infrastructure, Baitseanape Consulting Engineers and HL Matlala & Associates respectively constituted corrupt practices as envisaged under section 12 of the Prevention and Combating of Corrupt Activities Act, 2004.
* On-Point entered into “back-to-back” agreements in terms of which it received or was supposed to receive payments from contractors for designs which it had drawn in respect of projects that it was contracted to manage and supervise.
* In terms of the law, any person who accepts or agrees to accept any gratification from any other person or gives or agrees to give any other person gratification in order to improperly influence in any way the execution of a contract with a public body is guilty of an offence.
* The shareholders of On-Point, including the Ratanang Family Trust, benefited improperly from the tender that was awarded to On-Point.
* Although no information could be found during the investigation on any involvement of Malema in the procurement process, it was conceded by Lesiba Gwangwa that the company has paid R2 million directly to the Ratanang Family Trust from November 2010 to May 2012.
* Payments were also made to On-Point shareholders Tshiamo Dichabe, the Maketele Family Trust, Guilder Investments and the Gwangwa Family Trust.
3. Madonsela ordered that:
* Letebele take steps to cancel the PMU tender in terms of clause 23.1 (a) of the General Conditions of Contract and Treasury regulation 16A9.
* That the State Attorney institute legal proceedings against On-Point and its share-holders that benefited from the PMU tender in order to recover any amount to which the department is entitled due to On-Point’s fraudulent misrepresentation in respect of its bid and the improper financial benefit.
* Commence the process of imposing a restriction penalty on On-Point and Gwangwa in terms of the provisions or clause 23 of the General Conditions of Contract.
* Recover the total amount of double payments made to On-Point.
* Institute disciplinary steps against officials who served as bid evaluation and bid adjudication members for their failure to perform their functions diligently.