Round like a circle in a spiral, like a wheel within a wheel, never ending or beginning on an ever spinning reel …
After many delays and postponements, Nthimotse ‘Tim’ Mokhesi had to subject himself to the Judicial Commission of Inquiry into Allegations of State Capture on Friday, August 28.
As the head of the Free State Human Settlements (FSHS) Department, Mokhesi played a leading role in the controversial appointment of the joint venture between Blackhead Consulting and Diamond Hill Trading as contractors to audit and assess the extent of asbestos in low cost housing in the Free State.
Mokhesi has been implicated in previous asbestos-related evidence led at the commission, and it was necessary for him to give his version of events.
Last-ditch argument for suspension
Mokhesi was presented by Dali Mpofu SC. Mpofu made a last-ditch effort to obtain a suspension of the hearing, arguing that it was necessary to get a clarification of the law around the risk of self-incrimination.
Mpofu made it clear that they were not asserting a right to not testify, but that they had obtained legal advice that the risk of self-incrimination was a grey area. Mpofu added that the fact that Mokhesi had deposed two affidavits to the commission showed that he was willing to cooperate. Mpofu said the commission was not being prejudiced, it would only be deprived of the right to cross-examine.
The commission’s evidence leader for the day, Paul Pretorius SC, mindful that this may create a precedent, had prepared comprehensive heads of argument.
Pretorius explained that, in setting up the commission, it was contemplated by the president that those implicated in criminal acts would have to testify to the commission. The commission is obliged to investigate criminal activity, and in particular, implicated persons.
Pretorius expounded the law for this situation: Mokhesi has not been arrested, nor charged. He is a compellable witness and does not have the right to remain silent, which is only available to arrested persons in criminal proceedings.
Pretorius further explained that Mokhesi is not without protection; he can refuse to answer a particular question on the grounds of self-incrimination. A self-incriminating answer would not be admissible as evidence, and cannot be used against the witness in criminal activity.
However, there is no protection from perjury.
Deputy Chief Justice Raymond Zondo, commission chair, dismissed the application.
Pretorius questioned Mokhesi on the department’s supply chain management (SCM) policy, and Mokhesi said there is a requirement that the SCM policy be reviewed an annual basis.
Pretorius referred to the asbestos proposal submitted by the joint venture to FSHS. Mokhesi had stated in his affidavit that the proposal was delivered to his office by Phikolomzi Ignatius ‘Igo’ Mpambani, but that he didn’t meet him and didn’t make any inquiries as to who he represented. He confirmed that the department had not solicited the proposal, and was not expecting it.
Mokhesi forwarded the proposal to John Matlakala, a director in the FSHS SCM division, who dealt with procurement matters.
Pretorius gave an overview of the legal framework that applies when an organ of state or other institution contracts for goods and services – that it must do so in a manner that is fair, equitable, transparent, competitive, and cost effective. Pretorius emphasised that one of the ways in which cost effectiveness is achieved is in a competitive bidding process.
It is to be noted that the joint venture proposal was accepted without the department having initiated a competitive bidding process.
Pretorius added that as head of department Mokhesi would have been the accounting officer in terms of the Public Finance Management Act. The accounting officer must ensure that is has, and maintains, cost effective and efficient systems of management and control. The accounting officer has oversight over all department managers.
Mokhesi admitted that the procurement processes were not correctly followed.
Value for money
When asked whether he had requested that the project manager investigate whether there was value for money for the work done, and whether he had requested a report on that particular matter, Mokhesi simply fell back to parroting what the department’s practice was regarding irregular expenditure.
Further, according to Mokhesi, even if the Auditor-General declared the contract invalid and the expenditure irregular, the joint venture would still paid because it had “done the work” and there was “value for money”.
Mokhesi explained that when irregular expenditure has been determined, there is a process for writing it off.
“The Auditor-General will never allow you to write that off if he is not satisfied with what you have done.”
Mokhesi insisted, a number of times, that there was no finding that there was overpayment.
As far as Mokhesi was concerned, where there was irregular expenditure, all a department had to do was motivate why it should be written off. It appeared that all irregular expenditure was dealt with in one report.
Pretorius was unsuccessful in getting Mokhesi to reply to his explicit question on whether he (Mokhesi) had ever asked for a report as to whether there was value for money on the asbestos matter.
Mokhesi: “I don’t know why you want to single out that particular matter.”
It appeared that Mokhesi was evading the question. When pressed, he merely fell back on the departmental practice, holding on to it like a comfort blanket. This went around in circles with no end.
Unsurprisingly, the commission did not manage to complete the questions regarding Mokhesi’s version of events, and he will have to appear again.