Public Protector Thuli Madonsela at the launch of Civics Academy, dedicated to inspiring civic participation among young people by strengthening their political knowledge, democratic values and skills, at the Nelson Mandela Foundation in Johannesburg earlier this week. She is investigating the eThekwini Municipality for alleged abuse of Section 36 contracts over 10 years. Picture: Simphiwe Sibeko

Durban - A legal showdown is on the horizon between public protector Thuli Madonsela and eThekwini city manager S’bu Sithole, over the latter’s apparent refusal to co-operate with an investigation by Madonsela’s office.

The public protector is investigating the city for its alleged abuse of Section 36 contracts over 10 years. This much is apparent in an e-mailed response updating a complainant on the investigation.

The Mercury has seen the e-mail.

An investigator probing the matter this week told DA provincial leader Zwakele Mncango that the office was proceeding with a “legal process” after “difficulties experienced with the office of the eThekwini city manager”.

The investigator, Vusi Sikhakhane, said this move was to expedite the process and “aid us in proceeding with the investigation”.

Contracts are awarded through Section 36 in emergency situations or when no other suitable service providers are available. Opposition parties have complained that this process is being abused to enrich preferred businesspeople.

City spokeswoman Tozi Mthethwa on Wednesday denied claims that Sithole was not co-operating with the probe, saying “eThekwini is fully co-operating with the investigation by the public protector”. She added that “relevant” officials were busy collating the information requested by Madonsela’s office.

The investigation started more than a year ago when the DA asked Madonsela’s office to probe the city’s relationship with the controversial Zikhulise Cleaning Maintenance and Transport Company, owned by businesswoman Shauwn Mpisane and her husband, S’bu. The company has, over the past few years, received numerous housing contracts worth hundreds of millions of rands.

The public protector later expanded the investigation to all Section 36 contracts awarded by eThekwini in the past 10 years.

In February Madonsela told The Mercury that her deputy, Kevin Malunga, and a team of investigators would descend on city hall in early March to retrieve the requested but withheld documents.

Earlier in the month, Sithole said documents had been compiled in terms of the public protector’s request. Malunga said the city would have to show the team where the documents they required were being kept as they had received little co-operation. This was after Sithole had requested that the public protector’s office “specify” which Section 36 contracts it needed.

Contacted for comment on Wednesday Malunga said he was in a meeting but would follow up on the query. He said he was unable to confirm the development as he had been locked in meetings in the North West the whole of Wednesday.

Mncwango said mayor James Nxumalo would have to “provide leadership”, as Sithole was bringing the city into disrepute.

“This means the city manager failed to submit the documents and lied to the public in November last year when he said the documents were available.

“I am shocked by his arrogance,” he said. He added that the “bigger question” was, “what is he hiding by withholding the information?”

“If he’s not hiding anything then he should hand over the documents, unless there are people behind him instructing him not to,” he said.

Mthethwa said the work of the public protector “complements the steps that we have taken to strengthen accountability as well as to detect and deal with fraud and corruption”.

The city had now sought to “deal decisively” with conditions for applying Section 36.

A report restricting the use of Section 36 to procure services or products was approved by council on September 30 last year.

The measures were already showing “positive results”.

As at December 2015, she said, the city had spent R644 million on Section 36 contracts, a “drastic” reduction from the R1 billion similarly spent by December in the previous year.

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The Mercury