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Mphaphuli said that he will, in his defence against the SIU’s R76 million lawsuit and in his R1.8 billion damages claim against the corruption-busting unit and Fetakgomo Local Municipality, highlight all the wrongs about the report.

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Sizwe sama Yende

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Despite the Constitutional Court’s decision not to review an SIU report because it was not within its jurisdiction, the complainant says his commitment to pursue justice remains unwavering.

Lufuno Mphaphuli, owner of electrical engineering company Mphaphuli Consulting (Pty) Ltd, still maintains that the SIU’s one-sided report on his company was unauthorised as it was not mandated by a proclamation signed by President Cyril Ramaphosa.

The courts are yet to ventilate the merits of the convoluted cases between Mphaphuli Consulting, the Fetakgomo Tubatse Local Municipality in Burgersfort and the SIU.

Mphaphuli’s legal battle started in 2017 when Fetakgomo Tubatse Municipality former mayor Choris Phokane and manager Johannes Mohlala of asked the SIU to investigate Mphaphuli Consulting’s R326.5 million electrification project called Operation Mabone.

This request appears to have been made in retaliation. It was made four days after the municipality had failed to reverse a Polokwane High Court decision through an appeal in the Bloemfontein Supreme Court of Appeal to pay Mphaphuli Consulting R41 million that it owed and withheld.

The SIU’s investigation culminated in a report which alleged that Mphaphuli Consulting overcharged the municipality and benefited R76 million. Neither Mphaphuli nor officials from the Department of Energy (which funded the project) and Fetakgomo Tubatse were interviewed when the SIU investigated the matter.

This is the report Mphaphuli wanted to be reviewed and set aside but the apex court decided on June 3 that the matter was not within its jurisdiction.

SIU spokesperson, Kaizer Kganyago, said in a statement that the Concourt’s decision settled the question of whether the SIU was empowered to investigate the electrification of villages under Greater Tubatse Municipality (now Fetakgomo Tubatse Local Municipality) and paved the way for the civil claim against Mphaphuli Consulting to recover approximately R76 million to commence in the Limpopo High Court.

“An investigation by the SIU into the affairs of Greater Tubatse Municipality revealed that the municipality piggybacked on an existing contract between Mphaphuli Consulting and Vhembe District Municipality to electrify villages. However, the terms of the contract were changed to increase the pricing of the services by more than R5 000 than what was charged in Vhembe resulting in an overpayment of approximately R76 million,” Kganyago said.

Kganyago said that the SIU instituted a the civil claim in 2017 in the Limpopo High Court to recover financial losses suffered by the Municipality following the conclusion of its investigation.

Kganyago said that the SIU was authorised under Proclamation R52 of 2014 to investigate allegations of corruption and maladministration in the affairs of Greater Tubatse Local Municipality (now Fetakgomo Tubatse).

Mphaphuli said that he will, in his defence against the SIU’s R76 million lawsuit and in his R1.8 billion damages claim against the corruption-busting unit and Fetakgomo Local Municipality, highlight that:

·      The SIU’s own report says that it was asked by the former mayor and municipal manager to investigate his company, and not by a presidential proclamation;

·      The R76 million that the SIU is claiming was authorised by three court judgements made in his favour, when the municipality withheld payments, meaning that the SIU was setting a precedent of investigating binding court judgements;

·      The electrification charges were benchmarked and discussed before the contract was signed under the watchful eye of National Treasury. The Department of Energy and Eskom approved the costs. The Municipality itself even submitted a funding application to the Department of Energy, showing that the electrification cost R16 320 per household;

·      No government official has been identified and accused of assisting Mphaphuli (Pty) Ltd to overcharge the municipality;

Mphaphuli added that despite claims of overcharging, the SIU has made no attempt to secure a preservation orders against his assets since 2017 or push for trial to begin.

“The SIU's report to the President on 10 September 2019 omits the loss of over R200 million in the VBS bank scandal by the Municipality in 2018, implicating officials who hired the SIU. In its own version in its report, the SIU stated that it was approached by these same officials on 10 March 2017 to investigate Mphaphuli Consulting,” he said.

Mphaphuli said that it was concerning that SIU's legal counsel, who argued the review application on 11 February 2022 at the Polokwane High Court, was appointed as an acting Judge at the same Court before the delivery of the judgement on  March 3 2022.

“This situation underscores the pressing need for future judicial protocols to explicitly prevent the appointment of an advocate who has argued a matter before the Court from being appointed to the same bench prior to the issuance of the judgement. Such measures are essential to uphold the integrity and impartiality of the judicial process,” he said.