John Yeld writes on the high court ruling dismissed now former minister's appeal against PP's report
Spare a thought for former minister Tina Joemat-Pettersson, who has experienced a torrid time recently. In December last year while still Energy Minister, Joemat-Pettersson was hit with punitive costs – usually a sign of severe judicial disapproval – in the nuclear power deal court case brought against her by Earthlife Africa and the Southern African Faith Communities Environment Institute (SAFCEI).
Recently, she lost her High Court review application in respect of former Public Protector Thuli Madonsela’s adverse findings against her for handing control of South Africa’s fisheries research and patrol fleet to the SA Navy at the end of March 2012 while she was still Minister of Agriculture, Forestry and Fisheries.
And of course she was fired from the Cabinet by President Zuma last week – a move rumoured to have been on the cards since last year. JOHN YELD looks at the recent court case where costs were also awarded against her.
AN ATTEMPT by former Agriculture, Forestry & Fisheries minister Tina Joemat-Pettersson to overturn an adverse finding against her by former Public Protector Thuli Madonsela has been dismissed with costs.
Judge Elizabeth Kubushi of the North Gauteng High Court confirmed the legality and correctness of Madonsela’s finding, to the effect that the former minister's refusal to defer the March 2012 hand-over of her department’s fisheries research and patrol vessels to the South African Navy to manage, despite the Navy’s clear unreadiness to do so, had constituted maladministration resulting in fruitless and wasteful expenditure.
This was one of the key findings in Madonsela’s report Docked Vessels of her investigation into the November 2011 awarding of a new five-year, R800 million tender MLRF 088 – popularly known as the “Sekunjalo contract” – to manage the fleet of seven ships.
Madonsela’s tough recommendations in that December 2013 report included that Joemat-Pettersson be disciplined by President Zuma 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”, relating to the hand-over of the fleet to the Navy.
Judge Kubushi noted in her judgment that a tender to manage the fleet of ships had originally been awarded to private company Smit Amandla Marine in April 2000, for an initial period of five years. The tender had been extended on numerous occasions, the last of which had been due to expire on 31 March 2012.
During this time, two new bid invitations had been issued but subsequently cancelled. A third bid invitation issued on 9 February 2011 had resulted in the tender being awarded to a company known as Sekunjalo Marine Services Consortium in November 2011.
On 13 December 2011, Smit Amandla lodged an urgent High Court application to review and set aside the award of the tender to Sekunjalo. The application was settled on the advice of counsel, resulting in the cancellation of the tender awarded to Sekunjalo. But Smit Amandla did not continue with its contract; instead, Joemat-Pettersson’s department made arrangements with the Department of Defence and Military Veterans for the SA Navy to take over management of the vessels for 12 months, pending the awarding of a new tender.
A Memorandum of Understanding was signed between the two departments, in terms of which the vessels were to be transferred to the SA Navy on 31 March 2012 - the day on which Smit Amandla's contract ended.
After receiving several complaints, Madonsela investigated the tender issue, Judge Kubushi stated.
“As the investigation progressed, media reports regularly alleged that the patrol fleet was lying unattended to on account of the Navy's alleged lack of competencies and capacity to undertake the responsibility at the required magnitude and later that the vessels had been damaged by disuse. And, as the investigation drew to an end, the Public Protector was approached by a whistle-blower with allegations that the Department had irregularly contracted a company for the refurbishment of its vessels that had lost seaworthiness due to lying idle and lack of maintenance.”
After her investigation, Madonsela issued a confidential provisional report to complainants and other relevant parties involved, giving them an opportunity to respond to its contents. After receiving comments – including from Joemat-Pettersson – Madonsela finalised the report.
Apart from its complaint about the Sekunjalo tender irregularity, Smit Amandla also complained to Madonsela was that the Navy did not have the necessary competencies and human resources to assume the task of maintaining and operating the fisheries vessels from the take-over date of 31 March 2012, and argued that service delivery would be compromised if the hand-over proceeded. The company requested Madonsela to ask Joemat-Pettersson to withdraw the 30-day notice period in its final short-term contract and abide by the three months' notice that had been in the original agreement that had expired.
“... two days before the envisaged hand-over, that is on 29 March 2012, the Public Protector wrote a letter to the Minister requesting the Minister to reconsider handing over the vessels to the Navy on the face of allegations by Smit Amandla that if the vessels are handed over to the Navy service delivery will be compromised,” Judge Kubushi wrote.
“On 30 March 2012, the Minister after consultation with the Director-General of the Department, wrote back and informed the Public Protector that it was not feasible to suspend the hand-over of the services as the vessels had already been handed over to the Navy.
“It needs to be stated here that the actual hand-over of the vessels only took place on 31 March 2012 and the Navy commenced with the management function on 1 April 2012.”
In her final Docked Vessels report, Madonsela had made a finding that the Navy had not had the necessary capabilities at the time of the hand-over. “This lack of capabilities, according to the Public Protector, resulted in the lack of proper patrols and alleged deterioration of the vessels amounting to millions of Rand in refurbishment costs which in turn led to fruitless and wasteful expenditure.
“On that score, having made such a finding, the Public Protector went further to make a finding that in view of the fact that the reasons for a prudent hand-over period persisted, 'the abrupt hand-over' by the Minister was ill-advised and constituted maladministration on the part of the Minister. She also found the conduct of the Minister in rejecting her advice to suspend the handing over, to be improper and imprudent and as such constituted maladministration which led to fruitless and wasteful expenditure.
“Consequently, the Public Protector recommended appropriate remedial action against the Minister.”
Joemat-Pettersson’s lawyers argued before Judge Kubushi that Madonsela had unfairly and unlawfully arrived at her finding about the minister. They said her investigation and adverse findings against the minister had been procedurally invalid and unfair because, inter alia,
– the minister had not been given an adequate opportunity to dispute the facts and findings in the report;
– the Public Protector had not herself conducted an investigation, other than making enquiries by correspondence, and had delegated this duty to her officials;
– there was no provision in the Public Protector’s Act for a provisional report;
– the evidence relied on by the Public Protector was never made available to the minister for comment;
– the minister was not given an adequate and timeous notice of the hearing at which she was detrimentally affected or implicated.
– the influence exerted on the minister by the Public Protector to intervene when Smit Amandla's contract had come to the end was illegal, and therefore the finding of the Public Protector was based on an illegal instruction;
– the findings of maladministration and fruitless and wasteful expenditure never formed the subject matter of the complaints to the Public Protector;
– there was no evidence implicating the minister in relation to maladministration; and
– there was “no evidence whatsoever” to support the finding of wasteful expenditure in respect of the vessels at the time the report was compiled.
The Public Protector had formulated her own complaint against the minister, had investigated it and made a finding on her own complaint, the lawyers argued – “As such, it is submitted, a perception is inescapable that she was biased in that finding”.
But Judge Kubushi rejected all the arguments of the minister’s legal team, and noted that Joemat-Pettersson had been granted “an extended period” to respond to the provisional report and had submitted a 25-page comment.
“It is important to note that the Minister's main gripe is that she was never afforded an opportunity to be heard in order to dispute the facts upon which reliance was placed for the compilation of the Report and the findings...
“In this instance, the Minister was given a fair opportunity to respond to all the allegations and findings... when she was furnished with the provisional report for comment. She was also given ample time within which to respond.”
The judge also said that Joemat-Pettersson had at all material times been aware of the investigation against the Navy.
“It is my view that the Public Protector's approach to request the Minister to defer the handover process was not illegal. The Public Protector made the Minister aware of the administration of the patrol vessels services and that the imminent hand-over of the vessels to the Navy was likely to cause severe prejudice to the stakeholders involved and to the public interest. This was due to the fact that the parties involved in the handover were not ready or able to ensure that the vessels would be properly manned and maintained in the period just after handover. In order to avert prejudice she, correctly so, approached the Minister to warn her.”
The minister, however, had acted “wantonly” by not taking reasonable care to determine whether the Navy was indeed ready and competent to take over and manage the vessels immediately after the hand-over, the judge found. Instead, the minister had accepted her director-general's explanation at face value.
The judge also noted that all the parties had conceded that, by the beginning of the Public Protector's investigation on 1 August 2012, the condition of the vessels had deteriorated. “All the parties, except the Navy, are agreed that the deterioration happened when the vessels were under the custody of the Navy. What is clear, however, is that the vessels had deteriorated and could not be utilised as they required to be refurbished.”
In her investigation, Madonsela had found that the refurbishment costs of these vessels had constituted unnecessary and wasteful expenditure, and could have been avoided had reasonable care been exercised by the Minister when considering the hand-over to the Navy, the judge continued.
“I refuse to accept that as at 29 March 2012 when the Public Protector requested the Minister to defer the hand-over, the Minister was not aware of the numerous challenges facing the hand-over. The Minister opted not to defer the hand-over process without exercising reasonable care. Had she exercised reasonable care, she would have realised that a hand-over process of only 30 days was not well thought out and impractical and she would have deferred the hand-over...
“The Public Protector is correct to have concluded that the hand-over was abrupt and that the Minister's actions in this regard constituted improper conduct and maladministration which resulted in fruitless and wasteful expenditure.”
The judge also found there were no reasonable grounds for the suspicion that the Public Protector had been biased in her findings against the Minister, or that she had been motivated by malice and had not applied her mind to the facts before her. “That she harboured no malice, but was impartial, is borne out by her carefully reasoned report,” Judge Kubushi said, dismissing the application with costs.