An unhappy new year for Tina Joemat-Pettersson

John Yeld says the minister will be haunted by the ghosts of tenders past and future in 2016

ENERGY Minister Tina Joemat-Pettersson is one of several cabinet ministers who will probably be approaching the new year with some trepidation.

One matter likely to be occupying Joemat-Pettersson’s mind is the widely reported speculation that she’s on the verge of being fired by President Zuma during yet another cabinet re-shuffle. However, some commentators now suggest the president may be temporarily holding off making any further cabinet changes, following the furore that erupted over his unexpected firing of Finance Minister Nhlanhla Nene and the surprise promotion and equally rapid demotion of his successor, David van Rooyen.

Another issue for the energy minister will be how to respond credibly to tough questions being asked about her department’s notice in a Government Gazette of December 21 confirming Cabinet’s decision to procure 9,600MW of nuclear energy ­– ­particularly given that the notice was signed by then minister Ben Martins on November 11 2013, six months before she was assigned the energy portfolio but only published now. Allegations include that Joemat-Pettersson has been consistently disingenuous, at best, in her public utterances on the nuclear procurement process since taking office.

But a third uncertainty Joemat-Pettersson may be pondering is the outcome of legal action initiated by herself that had initially been set down for hearing last month (November), but that has now been postponed to the new year. This is a review of findings against her by Public Protector Thuli Madonsela, relating to her role in the November 2011 awarding of a new five-year, R800-million tender to manage and operate South Africa’s seven-vessel fisheries research and patrol fleet for the Department of Agriculture, Forestry & Fisheries (DAFF), of which she was then minister. If this judgment goes against her, she may be in line for another, politically embarrassing, formal reprimand by President Zuma.

Joemat-Pettersson has previously fallen foul of the Public Protector. In March 2013, also while she was still DAFF minister, she was reprimanded by the President for violating the Executive Ethics Code, following a recommendation to this effect by Madonsela in her report “Costly Moves” of November 2012. The violation had involved the “reckless” use of public funds during the minister’s lengthy stays at expensive hotels and guest houses during 2010. In March 2013, President Zuma sent a brief notice to Parliament indicating that he had delivered the reprimand, but he did not give any details of when, where or how it had been delivered, or received.

The DAFF fisheries fleet tender had been held for the previous 12 years by maritime services company Smit Amandla Marine, before it was awarded in November 2011 to the Sekunjalo Marine Services Consortium. This consortium consisted of Sekunjalo Marine Services, a division of Sekunjalo Investments Limited (since renamed African Equity Empowerment Investments Limited), that held a 65% interest; KND Naval Design (15%); and Nkiruka Investments (20%). Popularly called the “Sekunjalo contract”, the tender was cancelled just three months later, in February 2012.

Smit Amandla had initiated a High Court review application on December 6 2011 and filed extensive papers, but, before the application was heard, the tender was revoked by DAFF based on a legal opinion and forensics report. Many months later, the department confirmed publicly that an internal forensic investigation of its Fisheries branch had revealed “several weaknesses” in its internal auditing systems and procurement processes. It also confirmed having realised that, “regrettably”, the bid process for the R800 million fleet tender “might have been flawed”. “In the interest of good governance, the tender was thus withdrawn,” it stated. Also, Sekunjalo Consortium had already withdrawn its participation in the tender and had told DAFF it would not oppose Smit Amandla’s review application.

Despite the withdrawal, complaints about the alleged initial improper awarding of the fleet management tender were made separately to Madonsela’s office by DA MP Pieter van Dalen, his party’s then fisheries spokesman, and by Smit Amandla managing director Paul Maclons. Madonsela duly agreed to an investigation that looked at eight major issues around the aborted contract.

Nearly two years later ­– on December 5 2013, and just a few hours before former president Nelson Mandela’s death was announced – Madonsela released her report of the investigation, titled “Docked Vessels”. One of the recommendations in this report was that President Zuma consider reprimanding Joemat-Pettersson for her “reckless dealing with state money and services, resulting in fruitless and wasteful expenditure, loss of confidence in the fisheries industry in South Africa, alleged decimation of fisheries resources in South Africa and delayed quota allocations due to lack of appropriate research”.

In March 2014, the angry minister announced that she would be taking the report on review in the North Gauteng High Court. In a statement, she complained that it contained “numerous flaws and inaccuracies” and said her attempts to resolve the issues with the Public Protector had been unsuccessful. At the media briefing where she made the announcement, she refused to say whether she had consulted President Zuma about the report and whether he had given her the go-ahead to approach the courts.

The minister even had a problem with title, “Docked Vessels”, Madonsela revealed: “She (Joemat-Pettersson) also argued that the title of my report was inappropriate as it demonstrated prejudice in the mind of the author and appeared to similarly introduce prejudice to the reader’s mind.”

Joemat-Pettersson’s legal challenge is likely to be heard in the coming months. Spokesman for the Public Protector Oupa Segalwe confirmed that the minister had filed review application papers on March 14 last year (2014) and that Madonsela was opposing the action. The matter had been set down for hearing on November 2 this year (2015) after all pleadings had been exchanged, but the applicant had then filed a notice of removal from the court roll on September 28 (2015) and the notice had been served on the respondent’s attorneys on October 10 (2015). The application had not been withdrawn, Segalwe explained – “It was only removed from the court roll and can be enrolled again. The respective legal teams are communicating in this regard.”

Bomikazi Molapo, media liaison officer for current DAFF minister Senzeni Zokwana, also pointed out that the review action had merely been removed from the roll, not abandoned, as the Registrar had informed the ministry that neither their counsel nor the Public Protector’s counsel was available for the November date. “Hence the matter was removed from the roll and re-enrolled for a new hearing date to be allocated,” she said.

Joemat-Pettersson’s current spokesman Thabo Mothibi initially referred a request for comment to DAFF, and did not respond to further requests for comment by the minister herself on the issue.

Asked how the Public Protector would proceed to ensure that her recommendations in “Docked Vessels” were implemented and whether she would put any time frame on this, Segalwe replied: “We will be writing to competent authorities in the New Year on the way forward.”

Joemat-Pettersson’s review application may be influenced by the outcome of a major Constitutional Court hearing, set down for February 9, that is expected to give clarity on whether President Zuma has any discretion on recommendations and/or directives made by the Public Protector, or whether he is legally obliged to implement these.

This hearing involves separate applications by the Economic Freedom Fighters (EFF) and the DA relating to Madonsela’s report “Secure in Comfort” on security upgrades to the president’s private home at Nkandla. The two parties want the ConCourt to order President Zuma to implement the directives in the Public Protector’s report – including “pay back the money” or, more formally, the directive that the President pay a portion of the reasonable costs for the non-security upgrades.

Clarity on another of the eight issues investigated by Madonsela’s office around the “Sekunjalo contract” is due soon from a different quarter. This is the question of whether the submission of four tenders on the same bid by entities Premier Fishing, Premier Fishing Consortium, Sekunjalo Limited and Sekunjalo Marine Services Consortium (SMSC), which all fell under the Sekunjalo Group, constituted “collusive tendering”, and if so, whether DAFF’s entertainment of these bids constituted improper conduct and maladministration.

Although Sekunjalo mounted a vigorous defence against the allegation, Madonsela said in her report: “Neither DAFF nor SMSC (Sekunjalo Consortium) has disputed the fact that four companies from the Sekunjalo stable submitted bids in respect of the same tender invitation. I would be speculating if I found that these four companies discussed and possibly colluded on pricing. The issue as to whether this conduct constitutes collusive tendering is referred to the Competition Commission for a determination.”

The Commission has sat on her request for close to two years, but earlier this month (December) spokesperson Itumeleng Lesofe confirmed that the case was “currently under investigation”. “The Commission cannot provide an exact date for the conclusion of the investigation, safe to say that the investigation is at an advanced stage,” he said.

One way or another, 2016 seems to be shaping up as the year that will determine whether Tina Joemat-Pettersson’s personal vessel remains firmly moored within the Zuma dock, or whether she will be forced to set sail into uncertain seas.

Journalist John Yeld retired at the end of 2014 from the Cape Argus newspaper where he specialised in environmental and science issues. He still writes on a freelance basis.