Public protector probes 'disappearance' of investigation records
The investigation was conducted by her predecessor, Thuli Madonsela, who had investigated alleged tender irregularities and abuse of power at Transnet in 2009.
The probe had covered claims that former Transnet chief executive Siyabonga Gama was smeared and charged a few days before the Cabinet was expected to make an announcement on Ramos’s replacement.
Gama was competing with Gordhan for the position of Transnet boss before he was charged for misconduct in 2007.
The complaint was lodged by Vytjie Mentor, the then ANC MP and chairperson of the Portfolio Committee on Public Enterprises, on December 3, 2009.
Madonsela has so far refused to answer any questions about the disappearance of her investigation and referred everything to Mkhwebane.
Mkhwebane’s spokesperson Oupa Segalwe this week confirmed that Madonsela’s report on the matter could not be found in their system.
“We can’t find it on our files. It’s not in our archives or our system. We have to do an internal inquiry to establish how that report disappeared,” he said.
The Sunday Independent has seen evidence that Madonsela did conduct an investigation on the disappearance.
In a letter dated December 22, 2010, she wrote to the then Transnet chairperson, Mafika Mkwanazi, detailing the complaint her office had received and asked for further information from the organisation.
In her complaint, Mentor alleged irregularities in procurement at Transnet. She said that the Transnet board had unfairly conspired to prevent Gama from successfully applying for the vacant post of group chief executive, which was about to be vacated by Ramos.
“In a meeting with him, Mr Gama alleged that the motive for his suspension could only have been to scupper his chances of successfully applying for the post,” the letter read.
“A notice of a disciplinary hearing against him was served on August 24, 2010, two days before the cabinet was due to decide on the incumbent as group chief executive. The events giving rise to the disciplinary charges took place in 2007, yet he was only charged in 2009.”
“That the board adopted a resolution on February 13, 2009, which nominated five candidates for the post of group chief executive. He further alleges that he was confidentially informed by members of the board that he was ranked second after Mr Gordhan and that the latter had declined the nomination so that he then automatically became the board’s first choice.
“Finally, he alleges that it was then that he was reliably informed that Ms Maria Ramos had approached the board off the record and made certain allegations against him,” the letter read.
Madonsela’s office then requested the following from Transnet:
- All minutes of board meetings wherein the appointment of the successor to Ms Maria Ramos as group chief was discussed;
- All minutes of board meetings where Mr Gama’s disciplinary hearing was discussed;
- A profile of disciplinary hearings against executives who exceed their financial limits in relation to tenders
- Whether the condonation practice referred to in item (iv) above exists within Transnet and a profile of such condonations
- Whether there was currently within the employ of Transnet a person called Sipho Dube, who might shed light on an aspect of the public protector’s investigation
Gama was appointed. However, he was later investigated for the same allegation, fired, and then reinstated after he challenged the findings.
Gama was eventually fired again when Gordhan took over last year as the country’s Public Enterprises Minister. Madonsela’s investigation also looked at the procurement irregularities relating to the Transnet Capital Projects which had exceeded its budget by over R482 million.
She said in a letter at the time that a sample of projects where irregularities occurred and governance was flouted included: the Ngqura container terminal, the widening of Durban’s harbour entrance, the Cape Town container terminal, Transnet pipelines NMPP and Phase 2 of the Orex feasibility study.
“It is further alleged that the total variance for these projects amounted to R5.3 billion,” Madonsela said in a letter.
“A document titled Analysis: Controllable costs vs. Uncontrollable costs seem to support this allegation, although it is not clear whether these variances were authorised or not,” she said. In its response to Madonsela’s office on December 29, 2010, Transnet had requested an extension as the issues raised were “quiet extensive, very diverse and allegedly occurred over a period of time.”
“A number of other intervening factors have also come into play since the complaint was lodged,” Mkhwanazi said in his response.
In January, 2011, Transnet wrote to Madonsela indicating it had sought legal advice regarding the investigation.
The conclusion of the investigation remains a mystery as the office of the Public Protector can’t find the records.