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It appears that the Public Protector erroneously assumed that the SIU was mandated to investigate the Fetakgomo Tubatse Municipality and/or Mphaphuli Consulting. - Lufuno Mphaphuli

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Sizwe sama Yende

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An electrical engineer believes that he could have circumvented a convoluted and lengthy legal process with the Special Investigating Unit (SIU) had the Public Protector’s office heard him out.

Mphaphuli Consulting (Pty) Ltd owner, Lufuno Mphaphuli, initially lodged a complaint with former public protector, Busi Mkhwebane, on June 5 2017 when the SIU stepped in to investigate his company without a presidential proclamation authorising it to do so. Mkhwebane closed the complaint seven days later without investigating and, questionably, copied the SIU on her response to Mphaphuli.

The SIU had a proclamation issued in 2014 to investigate the defunct Greater Tubatse Local Municipality’s officials for corruption, but turned their attention to Mphaphuli’s company after they were asked to do so by former mayor Choris Phokane and municipal manager, Johannes Mohlala – not President Cyril Ramaphosa.    

Greater Tubatse was later amalgamated with another municipality, Fetakgomo, to form the Fetakgomo Tubatse Local Municipality on July 22 2016.

Phokane and Mohlala were hell-bent on stopping the company’s R326.5 million project of electrifying 20 000 houses, called Operation Mabone, which was awarded on January 26 2012, but were failing. They then resorted to withholding the company’s payments for work done, but Mphaphuli took them to the Polokwane High Court in December 2016 and they were forced to pay R41million owed to the company. The municipality lost on appeal on March 6 2017.

REVENGE

It was after Mphaphuli’s court victories in the Polokwane High Court and the Bloemfontein Supreme Court of Appeal that the duo roped in the SIU on March 10 2017 to pay revenge.

The corruption-busting unit ended up submitting a one-sided report to Ramaphosa on September 10 2019, which claimed that Mphaphuli Consulting overcharged the municipality by R76 million. The SIU subsequently instituted a civil claim to recoup the money.

In their report, the SIU did not get Mphaphuli’s side of the story and the version of the erstwhile Department of Energy (now Department of Mineral Resources and Energy) and National Treasury to strengthen its argument that the company overcharged.

None of the government officials involved in Operation Mabone were interviewed to clarify their role in allegedly assisting Mphaphuli to overcharge.

The Department of Energy has since explained that it did not have a problem with Mphaphuli (Pty) Ltd’s charge of R16 000 per household because the figure was benchmarked on what Eskom charged in the municipal area.

SECOND PUBLIC PROTECTOR’S COMPLAINT

Mphaphuli lodged his second complaint with currect Public Protector, Kholeka Gcaleka, in October 2023, but to date, there has been no response or action.

Gcaleka’s spokesperson, Khulu Phasiwe, confirmed receiving questions from The People’s Eyeand promised to respond, but he did not.

In a public tweet, Mphaphuli said: “It appears that the Public Protector erroneously assumed that the SIU was mandated to investigate the Fetakgomo Tubatse Municipality and/or Mphaphuli Consulting.”

“However, the Public Protector should have applied the doctrine of expressio unius est exclusio alterius, which delineates the interpretative boundary that what is not expressly included within the legislative or procedural mandate cannot be arbitrarily adopted or investigated. The SIU was not mandated to investigate these entities, and the Public Protector should have recognised this limitation.”

THERE WOULD BE NO CASE HAD THE PUBLIC PROTECTOR INVESTIGATED

Mphaphuli further told The People’s Eye that if the Public Protector had investigated his complaint, the following would be laid bare that:

·      There was no proclamation authorisinng the SIU to investigate the Fetakgomo Tubatse Municipality;

·      The precious Proclamation R52 of 2014 for the Greater Tubatse Municipality was not amended to include the Fetakgomo Municipality;

·      The SIU was hired by the leadership of the Fetakgomo Tubatse Municipality on March 10 2017 to investigate Mphaphuli Consulting after the dismissal of the appeal to the Supreme Court of Appeal of South Africa on March 6 2017;

·      The Polokwane High Court ruled in his favour for the payment of services rendered for the R41m and that decision was duly implemented and remains valid and was not rescinded;

·      The Supreme Court of Appeal decision of March 6 2017 was not appealed and remained valid;

·      The municipality adopted a resolution to conduct Forensic Investigation of Mphaphuli Consulting on December 7 2016, and the investigation notices served on Mphaphuli Consulting was the implementation of the council resolution.

 

MASSIVE LAWSUIT

Last month, Mphaphuli instituted a R1.8 billion lawsuit against the SIU and the Fetakgomo Tubatse municipality.

He claimed in his papers filed in the Polokwane High Court that the SIU had damaged his reputation and cost his company future contracts through driving a wrong narrative in the media accusing him of having overcharged the Fetakgomo Tubatse Local Municipality an amount of R76 million.

 “In summary, the harm inflicted upon the plaintiffs (Lufuno Mphaphuli and Mphaphuli Consulting) extends beyond mere reputational damage. It strikes at the very heart of their professional identity, financial stability, and future opportunities, casting a long shadow over their personal and professional lives. The unwarranted and baseless accusations, propelled by the SIU and magnified by the media, have not only damaged their standing in the industry but have also infringed upon their constitutional rights to dignity and a good name.”