'Deplorable' SITA investigation deal with Gauteng's ex-top cop scrapped
2 June 2018
A multimillion-rand deal involving an "extremely sensitive" investigation conducted by a private security provider headed by former Gauteng police commissioner Mzwandile Petros for the State Information and Technology Agency (SITA) has been found to be constitutionally invalid.
The North Gauteng High Court has also found that SITA's actions, in entering into the agreement in the first place before trying to cancel it, were "deplorable".
Petros, who was once provincial police commissioner in Gauteng as well as in the Western Cape, now heads the company The iFirm.
On May 21, 2014, SITA's former chief executive officer Freeman Nomvalo entered into a written agreement with The iFirm, represented by Petros.
The agreement included The iFirm rendering physical guarding services at SITA's offices in Pretoria.
But SITA later found this agreement to be invalid and therefore, in January 2016, launched a court application to have it set aside.
About three weeks ago, on June 15, the matter eventually wrapped up and judgment was delivered in the North Gauteng High Court.
The court found that the agreement between the two parties was constitutionally invalid. The agreement was therefore set aside and The iFirm was ordered to pay the costs of the application launched by SITA.
R10m contract to probe theft of 3 SITA laptops
It was revealed in the judgment that The iFirm said it suffered a loss of more than R12m as a result of its work for SITA being cut off.
SITA's dealings with The iFirm have for years been under scrutiny.
While the judgment in the matter did not detail what exactly The iFirm had been hired to investigate, reports over the years have shed some light on the work the private company was doing for SITA.
In July 2014 the Sunday Times reported that The iFirm was awarded the R10m contract to track down three laptops stolen from SITA's offices.
It was reported that The iFirm was hired even though law enforcement agencies, including the Hawks, police and the Special Investigation Unit (SIU) were probing the thefts.
At the time Independent Online reported that Nomvalo said he had hired Petros' firm because SITA needed someone trustworthy to investigate the theft of the laptops, a crime he believed was carried out by highly trained individuals.
SIU wanted contract set aside
A presentation in October 2016 to the Portfolio Committee on Justice and Correctional Services on its 2015/2016 annual report said that the SIU "instituted civil action to have a contract awarded to iFirm to the value of R265m set aside".
"The reason for setting aside the contract is non-compliance with SITA's procurement system as well as non-compliance with section 217 of the Constitution," it said.
A November 2016 presentation by the SIU to the Portfolio Committee on Telecommunications and Postal Services said the contract was valued at R302m.
In December 2017 City Press reported that after investigating the theft of the laptops, Nomvalo had extended The iFirm's scope to also look into tender irregularities in integrated supply agreement.
It reported that evidence leaked by SITA officials suggested The iFirm had its contract cancelled when its probe began looking into senior officials.
This report also said that SITA officials and board members were accused of trying to thwart a probe into a R1bn contract that was awarded to IBM South Africa, a multinational company.
City Press reported that it had documents indicating that SITA officials tried to reverse former president Jacob Zuma's 2014 SIU proclamation on the three-year partnership agreement with IBM.
Rumours of unlawful contract circling since 2014
The June judgment in the application by SITA to have the agreement with The iFirm scrapped revealed tensions between the private company and public entity.
"Mr Petros, deponent to (The iFirm's) answering affidavit, stated that rumours started surfacing during July 2014 that the contract between the parties was unlawful. I pause to mention that (The iFirm) had at that stage already rendered extensive investigative services to (SITA)," the judgment said.
Petros had at that stage said that while The iFirm was receiving some payments, they were sometimes late, and at other times not made at all, and "resolved to terminate the investigation that formed the subject matter of the agreement between the parties".
On August 25, 2014, Petros wrote to the chairperson of SITA's audit, risk and compliance committee suggesting a way to continue with the investigation.
"The letter was not favoured with a response and the services rendered in terms of the agreement came to a grinding halt in September 2014," the judgment said.
"Mr Petros states that the investigation was extremely sensitive."
Due to the sensitivity of the probe, Petros said a deviation from SITA's supply chain management policy in terms of a Treasury regulation applied.
This regulation stated that: "If in a specific case it is impractical to invite competitive bids, the accounting officer or accounting authority may procure the acquired goods or services by other means, provided that the reasons for deviating from inviting competitive bids must be recorded and approved by the accounting officer or accounting authority."
No tender process or board authorisation
However, SITA, during an internal investigation, found that the agreement was invalid.
According to the judgment, this conclusion was reached "due to the fact that the agreement was neither preceded by a public tender process nor was the conclusion of the agreement authorised by (SITA's) board of directors".
On December 10, 2014, SITA sent a letter to The iFirm saying Nomvalo "exceeded the authority delegated to him by SITA's board of directors in concluding the contract".
This letter said that in keeping with its supply chain management policy, SITA's board was required to approve all procurement contracts worth more than R100m.
"The CEO communicated his lack of authority to your chief executive officer, General Mzwandile Petros, prior to the conclusion of the contract," an excerpt from the letter, included in the judgment, said.
It further states that the contract is "invalid and unenforceable".
In May 2015 The iFirm, via its attorneys, issued a letter of demand against SITA.
'Unlawful termination' claim
This letter said that the contract was unlawfully terminated on December 10, 2014.
It said that as a result of this "unlawful breach and termination of the agreement", The iFirm had suffered a loss of R12 765 367.
In the letter, The iFirm demanded that this amount be paid within two weeks or a summons would be issued against SITA.
However, no summons was issued.
"Although [SITA's] initial conduct in concluding a legally invalid agreement is deplorable, the letter of 10 December 2014 clearly spelled out the legal principles applicable to agreements that are constitutionally invalid," the judgment said.
"[The iFirm's] decision to oppose the application was in direct conflict to the prevailing legal principles and bad in law."