Public Protector South Africa releases reports on investigations it conducted in the first quarter of 2024
30 June 2024
The Public Protector South Africa (PPSA) today issued its reports based on the investigations it had conducted in the first quarter of the 2024/25 financial year.
During the period under review, the PPSA received 1,850 new complaints, of which 926 were early resolution, 571 related to lack of service delivery, while 88 of the cases related to allegations of maladministration and related improprieties in the conduct of state affairs.
...
- Alleged improper conduct by functionaries of the Gauteng Department of Infrastructure Development and the Gauteng Education department in connection with the construction of Mayibuye Primary School
The report relates to an investigation into allegations that the functionaries of the Gauteng Department of Infrastructure Development (GDID) and the Gauteng Department of Education (GDE) improperly constructed Mayibuye Primary School on an old sewer line; without conducting a wetland study; and spent over R82-million on an incomplete project.
The investigation originates from a complaint lodged by Mr Mmusi Maimane on 16 September 2020.
Mr Maimane alleged at the time that the GDID spent R82-million on the construction of the school equipped to cater for 1,200 primary school learners, however, the school had at the time of the lodgement of the complaint, not been utilised as it cannot obtain an occupancy certificate due to the dangerous terrain on which it was built.
Based on the evidence before the Public Protector, the allegation that the functionaries of the Gauteng Department of Infrastructure Development improperly constructed Mayibuye Primary School at Commercia Rabie Ridge/Midrand prior to conducting a wetland study, thus resulting in overspending, costs overruns and undue delays in completing the project, is substantiated.
The investigation by the PPSA revealed various forms of maladministration, undue delays, and irregularities, which occurred during the construction of Mayibuye Primary School such as the following:
- The Contractor namely, Basic Blue/Nebavest was appointed by GDID on 22 August 2015, but the permission to occupy for the site was obtained from the landowner, City of Johannesburg Metropolitan Municipality on 22 September 2016, which was 13 months after the award of the contract or tender;
- The GDE amended the scope of the contract four days after the contractor was appointed to include amongst other things, smart school requirements. These required additional funding from Gauteng Provincial Treasury, and resulted in increased costs and further delays to get approvals from the relevant the provincial treasury;
- The handing over of the site to the Contractor was also unduly delayed as it only happened on 12 May 2017. As a direct result of the delays, the GDID and GDE incurred Compensation Events (CEs) of over R10-million towards the Contractor for “standing time”;
- Poor project management by the GDE and GDID resulted in their inability to identify shortcomings that existed on the site such as the revision of the scope of the project by GDE to incorporate smart school’s requirements, the diversion of sewer lines and the encroaching properties on site; and
- Both the GDE and GDID failed to ensure that undue delays experienced in this project were prevented or avoided through proper planning, project management by coordinating their actions through coherent governance, consultation with one another and cooperation as contemplated in section 41(1) of the Constitution.
Furthermore, the allegation that the functionaries of the Gauteng Department of Infrastructure Development improperly constructed Mayibuye Primary School at Commercia Rabie Ridge/Midrand prior to conducting a wetland study, thus resulting in overspending, costs overruns and undue delays in completing the project, is substantiated.
PPSA investigators found that the Gauteng Department of Agriculture, Rural Development and Environment (GDARDE) had no record of an application or a decision for an environmental authorisation as a provincial department responsible for environmental affairs in the Gauteng province from GDID as contemplated in National Environmental Management Act Regulations, and in terms of Version 13 of GDARDE’s March 2014 Minimum Requirements in connection with the development footprint activities for the site where Mayibuye Primary School is constructed.
The wetland study was only commissioned after construction had already commenced on site.
Even without the certainty due to the modifications already done in preparation for building on the northern portion of Erf 2326 Commercia Extension 34 Township Rabie Ridge/Midrand, all the school buildings are without a doubt within 500 metres radius of a wetland. No water use license authorisation application was submitted in relation to the construction of Mayibuye Primary School on Erf 2326 Commercia Extension 34 Township Rabie Ridge/Midrand. This was not in line with section 21(c) and (i) of National Water Act, 1998.
All the delays detailed above could have been avoided if both the functionaries of GDID and GDE collaborated and cooperated effectively to satisfy themselves about the permission to occupy site and the availability land to build the school prior to awarding the tender to the Contractor. As a result of the apparent lack of collaboration and coordinated project management by these two departments, undue delays ensued and both GDID and GDE incurred cost overruns and expenditure prohibited in terms sections 38(1)(c)(ii) and (iii) of the PFMA and 45(c) of the PFMA.
The CEs or costs incurred by GDID and GDE towards the contractor for “standing or idling time” are all irreconcilable with the prohibited expenditure in terms section 38(1)(c)(ii) and (iii) of Public Finance Management Act, 1999 (PFMA) and section 45(c) of the PFMA as well as in direct contravention of the efficient, economic, and effective use of resources envisaged in section 38(1)(b) of PFMA, section 45(b) of PFMA and section 195(1)(b) of the Constitution of the Republic of South Africa, 1996 (the Constitution).
The GDID’s own internal investigation, the Auditor General South Africa, and Gauteng Provincial Treasury’s findings confirmed that there were irregular expenditures in the project caused by amongst other things poor contract management and planning by GDID’s officials.
Having regard to the evidence, the regulatory framework determining the standard that GDID and GDE should have complied with, the Public Protector takes the following remedial action in terms of section 182(1)(c) of the Constitution:
Premier of Gauteng
Take cognisance of this report and in line with his executive powers envisaged in section 125(2) of the Constitution and exercise oversight on the implementation of the remedial action;
Member of the Executive Council for Gauteng Human Settlements and Infrastructure Development
Take cognisance of this report in line with powers contemplated in section 63(1)(a) of the PFMA and ensure implementation of the remedial actions as contemplated in paragraph(s) below, by GDID;
Member of the Executive Council for Gauteng Department of Education
Take cognisance of this report in line with powers contemplated in section 63(1)(a) of the PFMA and ensure implementation of the remedial action as contemplated in paragraph(s) below, by GDE.
Member of the Executive Council for Gauteng Department of Finance
Take cognisance of this report in line with powers contemplated in section 63(1)(a) of the PFMA and ensure implementation of the remedial action as contemplated in paragraph below.
Auditor General of South Africa
In terms of section 6(4)(c)(ii) of the Public Protector Act, the Public Protector hereby refers this report to the AGSA in line with its mandate.
The Head of Department of GDID
Within sixty (60) calendar days from the date of receipt of this report, provide the Public Protector with a Project Plan, in accordance with the MEC’s bilateral meeting convened on 25 January 2024 where an executive decision was reached that GDID will only implement the external civil works. The Project Plan must indicate how and when the completion of the remaining external civil works will be finalised to ensure that Mayibuye Primary School is fully operational in line with the efficient and economic management of the working capital as contemplated in terms of section 38(1)(c)(iii) of the PFMA and to enable learners to fully access and utilise all the facilities of the school during 2024;
Within sixty (60) calendar days of receipt of this report, provide the Public Protector, and the MEC for Human Settlements and Infrastructure Development with a progress report, in respect of the implementation of the recommendations set out in the GDID’s internal investigation dated 28 April 2022, as contemplated in terms of section 38(1)(h) of the PFMA.
Within sixty (60) calendar days from the date of this report provide the Public Protector, and the MEC for Human Settlements and Infrastructure Development with the Project Plan indicating how GDID shall work collaboratively with GDE in line with the principles of cooperative governance as contemplated in section 41(1)(h) of the Constitution to initiate a water use authorisation application process as recommended by DWS to ensure compliance with sections 21 and 22 of the National Water Act, 1998 and NEMA Regulations, 2017.
The Head of the Gauteng Department of Education
Ensure continuous compliance and strict monitoring mechanisms of the Project Plan already provided to the Public Protector on 14 June 2024 to ensure that the school is fully operational in line with the efficient and economic management of the working capital in terms of section 38(1)(c)(iii) of the PFMA.
Within sixty (60) calendar days from the date of receipt of this report, provide the relevant Treasury with a report envisaged in paragraph 3.2 (iv) of Treasury Instruction 2 of 2015/16: Cost Control Measures for the Construction of New Primary and Secondary Schools and the Provision of Additional Buildings at Existing Schools to enable the Treasury to interrogate costs overruns, project status, track expenditure trends and take necessary corrective action to ensure the full completion of Mayibuye Primary School project.
Within sixty (60) calendar days from the date of this report provide the Public Protector, and the MEC for Education with the Project Plan indicating how GDE will work collaboratively with GDID in line with the principles of cooperative governance as contemplated in section 41(1)(h) of the Constitution to initiate a water use authorisation application process as recommended by DWS to ensure compliance with sections 21 and 22 of the National Water Act, 1998 and NEMA Regulations, 2017.
The Head of the Gauteng Provincial Treasury
Within sixty (60) calendar days upon receipt of a report from GDE envisaged in Paragraph 3.2 (iv) of Treasury Instruction 2 of 2015/16: Cost Control Measures for the Construction of New Primary and Secondary Schools and Provision of Additional Buildings at Existing Schools, provide the Public Protector with monitoring mechanisms or measures to be put in place to prevent irregular and fruitless expenditure in relation to this project, in line with the provisions of Paragraph 3.3 of Treasury Instruction 2 of 2015/16: Cost Control Measures for the Construction of New Primary and Secondary Schools and the Provision of Additional Buildings at Existing Schools, section 18(1)(b) and (c) as well as section 18(2)(f) of the PFMA.
The Heads of Departments are expected to submit action plans to the Public Protector within thirty (30) calendar days from the date of this report on the implementation of the remedial action.
The submission of the implementation plan and the implementation of the remedial action shall, in the absence of a court order, be complied with within the period prescribed in this report to avoid being in contempt of the Public Protector.
Extract from a statement by the Public Protector, issued 30 June 2024
