MEC Moiloa Abusing his Position for Political Point-Scoring
15 August 2018
Last week, I received notice from the MEC of COGTA in Gauteng, Mr Uhuru Moiloa, of his decision to institute a section 106(1)(b) investigation into the City of Johannesburg.
Empowered by the Municipal Systems Act, this piece of legislation empowers the MEC to appoint an investigation team to look into matters in which the MEC has “reason to believe that maladministration, fraud, corruption or any other serious malpractice has occurred…”
It is important to note that the matters to be investigated appear to be a replication of the matters cited in the ANC in Johannesburg’s complaint to the Public Protector last year.
I have responded to MEC Moiloa in writing, a copy of which is attached to this statement, in which I have communicated the following:
1. It appears that his decision to institute a section 106(1)(b) investigation is motivated by politics rather than good governance principles;
This is substantiated by MEC Moiloa using a complaint raised by the ANC in Johannesburg, almost verbatim, and instituting an investigation without any effort to engage the City of Johannesburg. I believe that no effort has been made to rationally conclude that there exists “reason to believe that maladministration, fraud, corruption or any other serious malpractice has occurred…”
2. The Public Protector began investigating the allegations raised by the MEC last year. This arose from a complaint made by the ANC in Johannesburg, in 2017. The Public Protector has engaged the City of Johannesburg in the investigation. Duplicating this investigation demonstrates further the irrational nature of the MEC’s decision; and
3. The Inter-Governmental Relations Framework Act requires that spheres of Government engage on a good faith basis and in a manner which seeks to avoid unnecessary inter-governmental disputes and litigation. The MEC has avoided compliance with this Act.
Arising from my concern that this process is being politically driven, I have asked the MEC to indicate on how many occasions and when last an MEC of COGTA in Gauteng relied on this piece of legislation.
This is pertinent because in dealing with the 3500 cases of fraud, corruption and maladministration in Johannesburg, totalling over R18 billion, never once has anyone in Provincial Government displayed any interest in these investigations. This includes the multi-billion rand cases of the EPG Smart Meters and the MTC Broadband which implicates two National Ministers.
I have provided MEC Moiloa three examples of cases that have been reported since he has served as the MEC of COGTA in Gauteng:
a. The Merafong Local Municipality and West Rand District Municipalities investment of R127 million into VBS Bank published on 26 June 2018;
b. In June 2018, a service provider to Ekurhuleni alleged that Municipal Officials terminated his contract because he failed to pay a R300 000 monthly bribe; and
c. On 10 June it was reported that Rand West Local Municipality had failed to pay back R210 million owed to ESKOM, and other Gauteng ANC-run municipalities owed ESKOM a total of R1 billion.
I have asked MEC Moiloa to confirm whether he intends on initiating similar investigations into these matters in ANC-run municipalities in Gauteng.
In my letter, I have reminded MEC Moiloa that the multi-party government declared corruption, fraud and maladministration to be public enemy number one. The City’s actions have been consistent with this commitment from our first day in office.
I have communicated our intention to avail ourselves for an engagement, in which the MEC and his Department will find the City willing, co-operative and accountable. However, as government, we have a duty to handle matters in a manner which is impartial and does not prematurely see spheres of government in court with public money.
I am confident, and have conveyed as much to MEC Moiloa, that given the opportunity to engage directly on these allegations, the MEC will see that there is no reasonable and rational basis upon which to initiate further investigations into these allegations.
Both the Province and the City of Johannesburg have enormous challenges to overcome in order to provide services to our residents. Our residents expect to see us working together to achieve change in their lives. Initiating this kind of investigation will only serve to distract us from this priority and lock the Province and the City in unnecessary legal proceedings.
I advise MEC Moiloa to proceed with caution on this matter, because the multi-party government in Johannesburg will not stand by idly when laws are twisted to settle political scores.
Text of Herman Mashaba’s letter:
To : Gauteng MEC of COGTA, Hon Uhuru Moiloa
Cc : Gauteng Premier, Hon David Makhura
Subject : Investigation in terms of Section 106(1)(b) of the Municipal Systems
Act No 32 of 2000 as amended into alleged irregularities in the City of Johannesburg Metropolitan Municipality
Date : 13 August 2018
Dear MEC Moiloa
Your letter received on Wednesday 8 August 2018 refers, the contents of which are noted with shock that you have elected to follow this process.
Before the City of Johannesburg (COJ) considers its approach to the process outlined in your letter, the COJ seeks clarity in respect of the following questions:
1. In reading Section 106 of the Municipal Systems Act No 32 of 2000 as amended (hereafter referred to as the MSA) it refers to “Reason to believe that maladministration, fraud, corruption or any other serious malpractice has occurred…”
This infers a responsibility upon the MEC to undertake a process to come to the conclusion that he or she has reasonable and rational “Reason to believe that maladministration, fraud, corruption or any other serious malpractice has occurred…”
The question at hand, therefore, is what process you undertook to assess the allegations in your possession to come to the conclusion that your concern for these allegation rose to the level of a reasonable and rational concern?
This is particularly important given that these allegations have arisen from the African National Congress (ANC) in Johannesburg in their complaint to the Public Protector. I am therefore left to believe that this is the source of the source of allegations in your possession.
In respect of the above, especially given your political conflict of interest, how have the principles of Natural and Administrative Justice been addressed when you have not sought to engage the COJ in your determination that the allegations reasonably and rationally warrant the activation of Section 106(1)(b).
2. The Inter-Governmental Framework enshrined in Section 40(2) the Constitution of the Republic of South Africa similarly states that:
“All spheres of government must observe and adhere to the principles in this chapter and must conduct their activities within the parameters that the chapter provides.”
S41(1)(h)(iii) & (vi) further states as follows:
All spheres of government and all organs of state within each sphere must co-operate with one another in mutual trust and good faith by:
(iii) informing one another, and consulting one another on, matters of common interest; and
(vi) avoiding legal proceedings against one another.
Furthermore S40(1) of the Intergovernmental Framework Act places a duty on the spheres of government to avoid intergovernmental disputes, it states as follows:
40. (1) All organs of state must make every reasonable effort-
(a) to avoid intergovernmental disputes when exercising their statutory powers or
(b) to settle intergovernmental disputes without resorting to judicial proceedings.
The question posed to you therefore becomes how the processes that you have undertaken have sought to achieve the principles and spirit of the Inter- Governmental Relations Framework?
3. As you are no doubt well aware, the ANC has filed a complaint with the Public Protector in respect of these same allegations. The investigation is well under way and must be at an advanced state from our assessment of the engagements.
How do you rationalise the decision you have taken to commission a further investigation into these matters when the Public Protector, as a more legally competent body, is at the advanced stage of investigating the very same allegations?
4. A further element of this case is of concern to the COJ is the appearance of politics serving as the motivation behind this decision, as opposed to the good governance principles which were at the heart of the drafters of Section 106 of the MSA.
You have elected to take a complaint from the ANC in Johannesburg, essentially verbatim, and utilised legislation to commission an investigation already being investigated by the Public Protector without first seeking any engagement with the COJ.
In order to assess this particular concern of the COJ, I would ask that you indicate on how many occasions and when last did a Gauteng MEC of COGTA enact Section 106(1)(b) of the MSA?
I ask this noting that the COJ has 3500 cases, involving over R18 Billion in matters of maladministration, fraud and corruption. Some of these cases, such as the Broadband MTC case and the EPG Smart Metre case run into the billions of rands and have been very public.
I have communicated, publically, the slow or non-existent pace of prosecutions on these matters, and yet an MEC of COGTA has never expressed any interest in these matters.
Similarly, addressing more recent cases in the public space from other Municipalities in Gauteng I note the following, during your tenure as MEC of COGTA:
a. The Merafong Local Municipality and West Rand District Municipalities investment of R127 million into VBS Bank published on 26 June 2018.
b. In June 2018, a service provider to Ekurhuleni alleged that Municipal Officials terminated his contract because he failed to pay a R300 000 monthly bribe.
c. On 10 June it was reported that Rand West Local Municipality had failed to pay back R210 million owed to ESKOM, and other Gauteng ANC-run municipalities owed ESKOM a total of R1 billion.
My question to you, arising from these three cases is whether you have similarly commissioned investigations into these cases in terms of Section 160 of the MSA?
Conclusion
From the day that the multi-party government came into office in the COJ, we have been unambiguous about the fact that fraud, corruption and maladministration are public enemy number one. The actions of the COJ since then have been consistent with this statement.
The COJ is equally committed to operating in a transparent and accountable manner. In respect of your letter, the COJ wants to be engaged on these matters and will open itself to the scrutiny that you are legally empowered to exercise.
Having said this, the COJ holds the view that the approach of initiating a Section 106(1)(b) investigation is drastic and unwarranted given that the Inter-Governmental Framework has not been engaged whatsoever.
The COJ is confident that, given the opportunity to sit down with you and your Department, you would come to the conclusion that the allegations are without merit and do not justify the drastic approach of a Section 106(1)(b) investigation.
The Inter-Governmental Framework is very clear in its objective for spheres of Government to avoid engaging one another in a manner that avoid unnecessary litigation. I believe that the people of Johannesburg, and Gauteng, would like to see the two of us engaging in the Inter-Governmental Relations Framework rather than proceeding directly to drastic measures, distracting us from service delivery priorities.
The COJ is committed to engaging with you and your Department on these matters prior to the initiation of any Section 106(1)(b) proceedings. In the event that you chose to halt the premature Section 106(1)(b) investigation and engage the COJ as described, you will find the COJ entirely transparent and willing to answer any questions you or your Department have on these matters.
However, in the event that you elect not to take up this invitation and proceed with the Section 106(1)(b) investigation against the spirit of the Inter-Governmental Relations Framework, and the principles of Natural and Administrative Justice, the COJ will reserve its rights fully.
Given the timeframe that you have set out, I would request an urgent response from yourself so that the City can have these matters clarified before any investigation begins.
Thank you
Kind Regards
________________
HERMAN MASHABA
EXECUTIVE MAYOR, CITY OF JOHANNESBURG
ENDS
Statement issued by Cllr Herman Mashaba, Executive Mayor, City of Joburg, 16 August 2018
