Sekunjalo Investments Ltd has taken note of the remarks by the Public Protector at her press conference this afternoon.
The company has not had the benefit of seeing her final report, as it has not yet been released to the company.
The company will comment more fully once the final report is provided to it.
The company is pleased that the Public Protector did not find evidence of collusive tendering, and will deal with the competition commission further in this regard.
Conflict of interest finding
The company disagrees with the finding that the Sekunjalo Marine Services Consortium had a possible conflict of interest, for the following reasons:
1. The technical specialists from DAFF, namely Mr Lisolomzi Fikizolo (Director Fisheries Patrol Vessels), and Dr Johann Augustyn (Acting Chief Director: Resource Management), testified that the consortium would not gain any unfair advantage from the management of the patrol vessels, nor would it gain any competitive advantage from the management of the supply vessels.
2. The Department of Agriculture Forestry & Fisheries obtained an opinion from senior counsel on 2 February 2012 on this aspect, which vindicates the company's position,
"We were instructed by Fikizolo that the current safeguards in place are adequate to prevent the Ship Manager from being able to influence or report on where, when and what area is being targeted by the FCOs. There are no fixed routes or times nor are they readily able to despatch information to fishing vessels forewarning them of FCO inspections. For present purposes we assume that the safeguards are adequate.
We were also instructed by Augustyn that a Ship Manager with a commercial interest in the fishing industry would not be precluded from operating the research vessels and that any information that they might become privy to would not give them any competitive advantage in the fishing industry or in relation to the TAC. The data gathered by the DAFF from various sources is processed through complex mathematical models and operational management procedures in the recommendation of TAC's. In any event, survey results are swiftly and readily shared with the scientific working groups on which representatives of the fishing industry serve. In some sectors the vessels of rights-holders are used to conduct the necessary research. Industry information in the form of catch returns also forms an important element of the data on which the TAC recommendations are made."
3. The undisputed evidence is that the Fishing Control Officers on the patrol vessels are able to do their job unimpeded. There is no basis to conclude otherwise. The truth is that no actual advantage is to be gained by the management of the patrol and survey vessels.
The only contrary evidence obtained by the Public Protector was testimony which she obtained from five witnesses from SAMSA over a period of three days, who apparently suggested to her that the company would indeed derive an advantage or gain inside knowledge which could then be used in its favour.
This evidence was not disclosed to the company. The Public Protector explained that the testimony had not been recorded. This is a fundamental flaw in the process followed by the Public Protector.,
Furthermore, the company was deprived of the opportunity, accorded to it in section 7(9)(b)(ii) of the Public Protector Act, 1994, to cross-examine witnesses who had appeared before the Public Protector.
The company has thus been at a fundamental disadvantage in that
- The Public Protector had not disclosed the evidence on which she based her finding; and
- The company has not had an opportunity to test that evidence.
In the circumstances, the single adverse finding against the company by the Public Protector is fatally flawed as the Public Protector failed to follow the process prescribed in her Act to the detriment of the company.
The company is pleased that the Public Protector did not find, as had been alleged, that the Sekunjalo Marine Service Consortium lacked experience and expertise to perform the service.
The suggestion, widely repeated in the media, that the award of the tender was obtained by fraud or corruption, has not been supported by any evidence before the Public Protector.
The company welcomes its vindication, and will respond more fully once a copy of the final report is furnished to it by the Public Protector.
Statement issued by Khalid Abdulla, Sekunjalo Investments Limited CEO, December 5 2013
Click here to sign up to receive our free daily headline email newsletter