AfriForum exposes Madibeng report

AfriForum received a Section 139 intervention report that was completed in February 2013 by a Ministerial Task Team (MTT) from the office of the Honourable Minister of Local Government and Traditional affairs, Richard Baloyi. The report was handed to the senior management of the Madibeng Local Municipality in Brits in May/June 2013 by the office of the Minister. Since the report was given to the Madibeng Management it has not surfaced at the Municipal Council and thus no action has been taken regarding misconduct, both criminal and financial, that took place in the Municipality, discovered by the Ministerial Task Team.

AfriForum has subsequently decided to make the report to councillors, the media and the public. AfriForum wants action to be taken by Minister Baloyi against the offenders mentioned in the report. Service delivery by the Madibeng Local Municipality has deteriorated dramatically and taxpayers' money is being used to fund criminal and financial misconduct. AfriForum also recommends some sort of provincial intervention at Madibeng in order to regain control of management at the Municipality.

The purpose of the investigation into the affairs of Madibeng by the MTT, as understood by AfriForum, was to submit a report with findings and recommendations on the following:

1. Whether the circumstances that necessitated the intervention under review differ from those of the previous intervention

2. Whether the spheres of government have fulfilled their constitutional and legislative obligations after the first intervention

3. To determine which individual members of the Municipal Council and Management are to be investigated for criminal and financial misconduct in recent years

1. Background (pp 3-4)

1.1 During October 2011 an intervention was implemented by the North West Provincial Executive invoking the provisions of Section 139 of the Constitution.

1.2 The intervention followed an earlier intervention during the period 10 March 2010 to 18 May 2011.

1.3 The latest intervention of 2011/12 was invoked almost 5 months after the newly elected Council was sworn in, following the May 2011 local government elections.

1.4 The newly elected administration of the Municipality felt aggrieved by the intended intervention arguing that it was unfair, premature and malicious.

1.5 The Minister was made aware of the resolution taken by the North West Provincial Executive, and had to make a decision whether to concur or not with the intervention at Madibeng.

1.6 The Minister established a Task Team to conduct a due diligence with regard to both interventions.

2. Recommendations in report

The recommendations contained in the report are vitally important for the positive recovery of the Madibeng Municipality, but the report was manipulated in such a way by the Speaker of the Council, Mr Buti Makhongela, that the complete report and recommendations therein were never submitted to Council. AfriForum believes that Mr Makhongela has done so to cover up the fact that his name appears in the report as one of the officials who is being investigated.

Mr Makhongela knowingly and purposefully misled the Council with a false report, withholding the names of officials who are guilty of misconduct, including his own. AfriForum believes that this conduct is contrary to the principles of Batho Pele and infringes on the right of the public to access to information, and has therefore decided to make the report available to the Council, the residents served by the Municipality and the press.

Recommendations contained in the report, are (pp 7-8):

2.1 Disciplinary action be instituted against the Municipal Manager, Mr Monde Juta; Acting Chief Operations Officer, Mr Andrew Modise; and the Acting Head of Corporate Services, Mr Xola Magwala.

2.2 Disciplinary action be instituted against Mr Buti Makhongela as Speaker and Councillor.

2.3 Criminal cases be opened with the South African Police Service against Mr Juta, Mr Modise, Mr Magwala and Mr Makhongela.

2.4 The three officials, Messrs Juta, Modise and Magwala, be suspended or placed on special leave pending the finalisation of the disciplinary or criminal cases against them.

2.5 Mr Makhongela be suspended or placed on special leave pending the finalisation of the disciplinary or criminal cases against him.

3. Proceedings regarding criminal prosecution

The report clearly states that the MTT has assembled a portfolio of evidence with sufficient information to institute disciplinary and criminal proceedings against three specific persons in the management of the Madibeng Municipality (p 46):

• Mr Monde Juta (current Municipal Manager)
• Mr Andrew Modise (Head of Corporate Services and the Acting Chief Operations Officer within the Municipality.)
• Mr Xola Magwala (Head of IT and Acting Head of Corporate Services.)

The report then states (pp 46-50):

3.1 Those three senior officials (Juta, Modise, Magwala) are at the centre of financial malpractices within the Municipality. They engage in extensive cover-ups of criminal conduct, which in itself is a crime both at common law and in terms of the Municipal Finance Management Act. They know the systems well and knowingly undermine them ‘professionally'.

3.2 They facilitate and create an environment for corruption to thrive. They make use of sophisticated means to direct specific projects to certain companies or away from certain others.

3.3 It is rather a deliberate high-level systematic entrenchment of a corruption- festering environment, which equally requires thorough and high-level investigation by a team of experienced investigators and prosecutors.

3.4 Their pattern involves a deliberate non-compliance with the Supply Chain Policy through appointment of their preferred service providers through the ‘turnkey' concept. This gets recorded as a deviation with no proper or valid reason advanced. Then they close up the irregularity through condonation from Council. This is typical of racketeering activities which the Prevention of Organised Crime Act (POCA), No. 121 of 1998, seeks to criminalise.

4. Recommendations from AfriForum regarding MTT report

4.1 The Minister of Local Government and Traditional Affairs, Richard Baloyi, must intervene and take action against the mentioned officials (Juta, Modise, Magwala) in order to bring them to justice. The report by the MTT indicates that there is enough evidence to charge these individuals with various crimes, yet no action has been taken against them. The law allows for the fact that guilty officials may be held responsible in their personal capacity to prevent similar crimes and misdemeanours from occurring again.

4.2 AfriForum recommends further that Ms Nana Masithela (Former Chief Financial Officer) must also be criminally investigated for previous financial misconduct.

4.3 AfriForum will also open a case of fraud at the National Prosecuting Authority against the speaker, Buti Makhongela, for manipulating the report and not revealing it to the entire Council at the appropriate time.

5. Conclusion regarding MTT

From a constitutional point of view, the appointment of the MTT was a waste of time with no real substance. It would appear that the very custodians of the co-operative governance are not aware of all the legal obligations and processes that are required to ensure that constitutional principles are upheld.

It is quite clear that the MEC charged with local government failed his obligations dismally. In addition, the Provincial Executive headed by the Premier failed in their duty to ensure that the MEC is held accountable. Likewise, the Minister failed in his duty to ensure that due and proper oversight took place on the actions of the MEC - in short, the Government, local, provincial and national, had failed the community of Madibeng. The only ministry that sent warning signals was National Treasury who stopped the payment of certain intergovernmental grants in view of the financial instability of Madibeng.

Compiled and issued by Ian Cameron Organiser: North-West AfriForum, July 4 2013

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