Legal representatives for a few of the so-called kingpins in the Durban Solid Waste tender fraud case being heard in the Durban High Court argued that their clients and others were “targeted”.
Another hit-back from the defence advocates during this week’s proceedings was that IFS, the company engaged to probe the awarding of contracts worth more than R320 million, was “hand-picked for the assignment”.
That was put to the State’s second witness, Shawn Hitler, a senior investigator in the eThekwini City Integrity and Investigations Unit (CIIU), by advocate Jay Naidoo who also represents Zandile Gumede, the former Durban mayor.
Hitler continued on the witness stand when the matter resumed on Wednesday, with Naidoo cross-examining him.
Friday’s proceedings amounted to no more than a few minutes when the presiding judge, Sharmaine Balton adjourned the trail to July 17.
The only highlight on the day was members of the gallery, legal teams and accused joining in song to wish Gumede a “happy birthday”.
Advocate Griffiths Madonsela was supposed to continue cross-examining Hitler, but the administrative requirements to include the nearly 500-page stack of documents he presented into the court record prevented any further action on the day.
Madonsela is representing Sipho Nzuza, the former City Manager of eThekwini.
On Thursday, Madonsela asked why members of the City’s bid adjudication committee (BAC) were not among the accused in the matter.
Madonsela said the BAC were the ones who authorised the awarding of the controversial contracts in question and doubled the time-frame that was originally proposed by the line-function committee responsible for the tender.
Gumede, Nzuza, Robert Abbu, a former DSW head, Sandile Ngcobo, a DSW supply chain deputy head, councillors, businesspeople, and their companies are included in the list of 22 accused in the matter.
It has been alleged that Gumede and her co-accused featured in a syndicate that directed the awarding of DSW contracts to have refuse removed from Durban townships, for their own benefit and others.
Madonsela said one of the ways in which a municipal manager was permitted to award tenders were through Section 36 awards.
They were awarded in cases of emergency or where it was impossible to follow the City’s prescribed supply chain management policies.
Madonsela said the matter in court related to the S36 award of the refuse collection tenders, where Abbu and Ngcobo signed in their respective capacities, along with other line function managers, which the BAC eventually approved.
Hitler agreed.
“In this instance the line function managers asked the BAC for their approval, explained their action, proposed that the contracts be awarded to four contractors and be done on a month-to-month basis, for three months,” he said.
Madonsela said the BAC responded by increasing the contract to six months.
Hitler agreed that Nzuza was not a part of the BAC when the contract period was doubled and had an estimated to cost R45m.
“The change from three to six months was made by the BAC, why are those committee members not in court because they effected the change?” Madonsela asked.
Hitler said during the investigation the change was looked into.
For much of Wednesday’s proceedings, Naidoo questioned Hitler about the CIIU’s decision to award IFS the contract to investigate.
Hitler’s understanding was that IFS was among a group of 17 service providers contracted to assist the municipality with forensic investigations.
Therefore, when it became necessary to probe the DSW contract, Hitler said the CIIU asked IFS only to provide a quote.
He said for the sake of “continuity” it was appropriate to appoint IFS because they had handled a previous investigation that ended with criminal charges brought against an entity, and the same entity had also featured in the DSW tender probe.
Naidoo asked Hitler if he was aware of the legislation calling for a preliminary investigation by a disciplinary board into matters of financial misconduct, within seven days, before engaging external investigators.
Hitler said the allegations related to irregular appointments of service providers for the DSW contracts and payments being made without work being done.
“We did not alert the others (heads) because we had to apply caution as to who we approached about this matter. We were aware that people in the line function colluded with perpetrators in the past. Threats were made to a CIIU investigator who handled the previous matter,” said Hitler.
Naidoo said the CIIU did not test the allegations for substance but chose to hand work to IFS, and that three quotes were needed for an award.
“The manner in which IFS was appointed was irregular because SCM processes were not followed,” Naidoo said.
He said certain individuals were “targets” of the investigation and IFS was chosen to ensure a “predetermined outcome” was achieved.
“No individuals were targeted,” said Hitler.
SUNDAY TRIBUNE