---

The SAFLII blunder directly affects a pending case between an engineer and the SIU in the Concourt

---

Sizwe sama Yende

---

An electrical engineer embroiled in a legal battle with the Special Investigating Unit (SIU) has accused officials of a digital repository of court judgments of tampering, changing, and omitting crucial information that forms the basis of his cases. 

Lufuno Mphaphuli, the owner of Mphaphuli Consulting (Pty) Ltd, has, in his public complaint to the Southern African Legal Information Institute (SAFLII), noted that the organisation's actions eviscerated his pending appeal in the Constitutional Court (ConCourt) through altering an original paragraph from a Polokwane High Court judgement.

In one of his many litigations, Mphaphuli is trying to convince the apex court to review and set aside the SIU's report's findings and recommendations relating to his company due to many irregularities he has identified. 

The SIU's report, which was given to President Cyril Ramaphosa on 10 September 2019, is based on a Presidential proclamation R52 of 2014 issued on the defunct Greater Tubatse Local Municipality in Burgersfort on 1 August 2014. However, for some bizarre reasons, Mphaphuli's company was dragged in, and its R326 million electrification contract to electrify 20 000 rural households was terminated prematurely.  

Based on this contentious report, the SIU instituted a R76 million claim against Mphaphuli for alleged overcharging of the municipality in October 2017, but six years later, has made no effort to have the trial started or get a preservation order to ensure Mphaphuli does not dispose of his properties. Mphaphuli only received the report on 10 December 2020 from the office of the President after exercising the Promotion of Access to Information Act and the SIU neither contacted him during the investigation to give his version nor inform him of its existence after completion.

RELATED: Electrical engineer slaps SIU with a R1.8bn lawsuit

The SAFLII blunder directly affects this case. Mphaphuli's appeal in the Bloemfontein Supreme Court of Appeal (SCA) against the Polokwane High Court's decision to refuse his application to have the report set aside and reviewed was unsuccessful on 29 August 2023. He is now seeking relief in the ConCourt. 

In the SAFLII complaint, Mphaphuli complains about paragraph 38 of the judgement in Mphaphuli Consulting (PTY) Limited v Special Investigating Unit and Others case (5232/2021) [2022].

When he visited the website, Mphaphuli found that the paragraph read: "[38] The contention is also that the content of the report showed that a decision has been made that the applicant overstated its claims for services rendered, which is defamatory in nature. I cannot agree. These observations or opinions formed the basis of or rationale for the decision to institute proceedings."

The SAFLII paragraph is vastly different from the original Polokwane High Court judgment, which read: "[38] I find that the report does not constitute administrative action with the result that PAJA finds no application on the facts. The contention is also that the content of the report showed that a decision has been made that the applicant overstated its claims for services rendered, which is defamatory in nature. The observations or opinions set out in the report formed the basis of or rationale for the decision to institute proceedings. lt should nevertheless be accepted that the report negatively affects current business and future business dealings of the applicant. The right to human dignity is inherent to any person. Every person has the right to have his dignity respected and protected."

Mphaphuli said that the discrepancy was concerning. "The altered paragraph 38 on your website omits crucial parts of the original judgement, which could potentially impact the interpretation and understanding of the case, particularly in relation to the applicant's right to human dignity and the negative impact on their business dealings," he said.

"This specific paragraph," said Mphaphuli, "is one of the bases for the appeal to the SCA and now to the ConCourt, making the accuracy of the judgement's text paramount. I would appreciate if you could investigate this matter and provide clarity on whether your website has been compromised or if there is another explanation for this discrepancy."

SAFLII initially operated from the University of Cape Town's Department of Public Law but was moved to the Democratic Governance and Rights Unit. 

According to the unit's head, Vanja Karth, her unit was no longer working with SAFLII.

Mphaphuli's bold challenge of the SIU began on 10 March 2017 after the then Fetakgomo Tubatse Municipality's mayor, Choris Phokane, and municipal manager, Joe Mohlala, requested it to conduct a forensic investigation on Mphaphuli Consulting. This was after the Supreme Court of Appeal had dismissed the municipality's appeal on 6 March 2017.

This request followed the municipality's failure to pay Mphaphuli Consulting R41 million for work done. Mphaphuli approached the Polokwane High Court to claim his money and won. The municipality's appeal in the Bloemfontein Supreme Court of Appeal failed on 6 March 2017.

Four days after the SCA fiasco, Phokane and Mohlala and their legal team at the time, BDK Attorneys, held a meeting with the SIU on 10 March 2017, where they made the request, which appears as revenge against Mphaphuli's success in the Polokwane High Court in November 2016 and the SCA on 6 March 2017.

In an unprecedented move, Mphaphuli filed a R1.8 billion lawsuit against the SIU and the municipality last week for defamation of character and loss of income since 2017. 

Mphaphuli punches holes in the SIU's handling of the matter by:

-       Claiming that he was neither told nor interviewed by the SIU before it compiled a one-sided report accusing his company of overcharging the municipality;

-       Investigating his company without a Presidential proclamation but an instruction from a mayor, which is at variance with the SIU Act;

-       Issuing a report on a proclamation that targeted a defunct municipality that stopped exisiting three years prior. When the SIU's report was finished, Greater Tubatse had been amalgamated with Fetakgomo Local Municipality to form the Fetakgomo Tubatse Local Municipality after the August 2016 local government elections;

-       Accusing him of overcharging yet the Department of Mineral Resources and Energy, which funded 99% of the project, did not complain about the R16,000 charge per household and had confirmed (in August 2021 to this journalist and was published at the end of August 2021) that it was benchmarked from what Eskom charged in the area in 2013 and which was funded by the Department;

-       Releasing media statements with his photos on their SIU's official social media accounts as if he was already found guilty in a court of law.

Mphaphuli's allegations of tampering with court judgements by SAFLII have added a new layer of complexity to an already intricate case, raising concerns about the integrity of legal information repositories and their potential impact on the pursuit of justice.