Statement in response to comments by the ANC at a press conference held today

Today our council adopted a report prepared by Bowman Gilfillan, who were appointed to investigate whether any prima facie grounds existed for disciplinary action to be taken against one or more of our senior managers – Achmat Ebrahim, the City Manager; Melissa Whitehead, the Commissioner Transport & Urban Development; and Craig Kesson, the Executive Director Directorate of the Mayor.

In adopting that report our council took a number of resolutions based on the report and its apparent findings.

I welcome further investigations as agreed by council today.

As resolved by Council on the 5 December 2017, a copy of that Bowman Gilfillan report was delivered to me on Friday 29th December 2018.

I perused the report over the New Year’s Eve weekend and found that it contained a number of material factual errors upon which Bowman Gilfillan consequently made highly prejudicial “findings”, “conclusions” and “recommendations”.

Bowman Gilfillan reserved their right to amend the report should any information be brought to their attention which would impact the findings of their report.

Based on this apparent invitation to correct erroneous findings I submitted a letter to them on Wednesday 3 January 2018 setting out the factual errors as they relate to me.

I requested that they amend the report, and some of their findings, based on the factual errors I point out so that Council could consider and act on a report that was factually correct in as many respects as possible given their tight timelines.

Amongst those errors was a “factual finding” that established that I had “in fact” provided the DA leader with a copy of certain forensic reports. They also reported that I had confirmed in my interview with them that I had done so. 

What I had in fact stated in my interview with them was that I had certainly not provided the DA Leader or any other unauthorised persons with copies of any forensic reports.

Based on this fallacious finding, Bowman Gilfillan concluded that the inference, and allegations, that the Executive Director: Directorate of the Mayor or any other person, distributed confidential forensic documents to unauthorised parties, including a DA Member of Parliament, needs no further consideration or investigation.

Notwithstanding Bowman Gilfillan’s apparent invitation to correct erroneous findings they informed me, via the Councils Committee Secretariat, that they would not amend their report.

Today I received written confirmation from the Leader of the DA that I did not give him or his office the reports. This confirms that the Bowman Gilfillan report is based on erroneous facts and findings.

I also feel that I have been unfairly and unnecessarily defamed and embarrassed by this report and believe Bowman Gilfillan’s refusal to correct a false finding, or to even consider that they may have made an error, to be unreasonable. More especially in light of their apparent invitation to have errors pointed out to them.

The report cannot stand as it is. It must be corrected.

All of this could have been avoided had Bowman Gilfillan considered the request I made to them on 3 January 2018.

I am taking advice from my legal team on how to deal with this most unfortunate outcome of a process that was meant to provide a clear and independent way forward for our council as we pursue good clean governance.

Text of the letter:

URGENT

Attention: Mr Johan Kruger

BOWMAN GILFILLAN INC

22 Bree Street

Cape Town, 8000 Ref: CoCT/6177468

Dear Sir

REPORT ON INVESTIGATION INTO ALLEGATIONS OF MISCONDUCT AT THE CITY OF CAPE TOWN, DATED 29 DECEMBER 2017

The captioned report, whose authors are not identified (but which was officially provided to me under cover of a letter signed by you), refers.

The report, with respect, contains material factual errors. Some of these are identified below. The purpose of this letter is to provide you with an opportunity to correct these errors and to retract erroneous and highly prejudicial "findings", "conclusions" and "recommendations" purportedly included in the report. You are therefore hereby afforded the opportunity which your covering letter (para 4) and report (para 6.10) both embrace: a chance to correct erroneous findings made under the tight timelines your report laments.

The rep ort apparently suggests that an investigation which usually requires three to six months to complete has had to be executed within a mere 15 working days (para 6.2, read with para 6.4). Incidentally, in this context your report purports to find support in a submission made by me to the-then Minister of Co-Operative Governance and Traditional Affairs. The relevance of your report's reference to the 2012 submission tothe Minister is not apparent, unless it is to be construed as an acknowledgement of a rushed job inherently at risk of flawed findings, conclusions and recommendations.

The first flawed "finding" which concerns me is made in respect of an interview allegedly conducted with me "on 13 November 2017" (para 9.1.3.8 of the report). The demonstrably defective date apart, it is simply untrue that I had "informed [the authors of the report, it appears; or anyone else, for that matter] that [I] provided the forensic reports to the leader of the DA." What I had stated during the interview (which occurred in December, not November) was that I had most certainly not provided the forensic reports to the DA leader or to any other unauthorised recipient. Therefore your purported "factual finding" that you managed to "establish that the [Executive Mayor] had in fact provided a copy of certain of the forensic reports to the DA" (para 9.1.3.5) is fallacious. It follows that your conclusion that there is "no basis on which to continue to draw that inference [namely that' the Executive Director: Directorate of the Mayor] from the established facts" is actually contradicted by the established facts. Therefore, the recommendation {in para 9.1.5.l of the report) based on your flawed factual construct is untenable.

The second, third and fourth set of "findings" and "recommendations" concerning me have been reached without interviewing me on these issues or even considering my widely-publicised statement. This your report itself confirms. Paragraphs 9.12.2.l.l-3, 9.l 6.2.1.1-3 and 9.17.4.1.1-2 of the report reveal that Bowmans Gilfillan did not 11interview" me or even "perused 11 my statement on any of the issues identified in "clauses'' 9.l 2, 9.16 or 9.17 of the report.Despite having interviewed me on other issues, you have unaccountably failed to put a single relevant question to me in respect of the "findings", "conclusions" and "recommendations" made in relation to me on these issues. Yet you have advanced what you yourself describe as "serious" insinuations (presented variously as "factual findings", "conclusions" and “recommendations") against me. This is not authorised by the statutory matrix in terms of which you have been appointed - particularly not in the absence of compliance with the principles of natural justice and fairness.

I am advised that the defects and irregularities identified above vitiate at least the affected parts of your report, and render any attempted reliance on the report unlawful.

Should the affected parts of your report remain uncorrected, this may cause irreparable reputational and other harm to the City and to myself. I therefore respectfully request that at least the affected paragraphs be deleted from your report and that a corrected copy be reissued. The affected paragraphs are 9.1.3.5; 9.1.3.8; 9.l .3.10; 9.1.4.1.1; 9.1.4.1.2; 9.12.3.12; 9.12.3.15; 9.12.4.4; 9.12.5.2; 9.16.3.9; 9.16.3.12; 9.16.4.2; 9.16.5.1; 9.17.7.1.4 [last bullet); and 9.17.8.1.3 (last bullet).

ln light of the imminent Council meeting scheduled to consider your report, I must ask to receive your response by no later than 09h00 a.m. on Thursday 4 January 2018. As a consequence of having only had a single working day to prepare this letter, I must moreover record that I, too, reserve the right to amplify my response to your report. I indeed reserve all my rights.

Yours faithfully

PATRICIA DE LILLE

EXECUTIVE MAYOR

Date: 3/1/2018

CC: Speaker; Gillian Kenhardt, City Manager; Chair of the Audit Performance Audit Committee

ENDS

Statement issued by Patricia de Lille, Executive Mayor of the City of Cape Town, 5 January 2018