18 April 2024 | 08:57 AM

The Durban whistleblower, the deadly hit and the dodgy R30m ‘debt’

Key Takeaways

  • In 2012 a diligent Durban electricity official flagged a contractor for overcharging and urged his blacklisting – with the city’s support.
  • In 2017, under the new Zandile Gumede administration, the city turned on the official and suspended him. When the official persisted, his son was shot dead in a hit he believes was meant for him.
  • In 2018, while continuing to hound the whistleblower, the city offered the contractor an extraordinary R30-million settlement. Now a new administration is going to court to avoid paying, but its refusal to play open cards threatens to sabotage its own case.

An unresolved murder and attempts to silence a whistleblower are at the heart of court drama around eThekwini municipal tenders that has the city in a tailspin.

In November 2017 gunmen arrived at the New Germany home of Nathi Nkwanyana, a city revenue protection manager, and shot dead his 23-year-old son, Ntuthuko. In papers later filed in court Nkwanyana, an electrical engineer who has worked for the city for 27 years, said the hail of bullets that killed his son were meant for him.

On 25 August this year, to public consternation, the Durban sheriff arrived at the municipality’s electricity department and attached assets including computers, telephones and vehicles.

This followed a R30-million high court judgment against the municipality in favour of an obscure contractor, Daily Double Trading 479 CC (trading as Pholobas Projects), which had its contracts with electricity department cancelled in 2013.

Unlike the seizure of the municipality’s equipment, the murder of Nkwanyana’s son didn’t make headlines, but now a court case involving Pholobas, the city and Nkwanyana has again raised questions about the unsolved killing.

While Nkwanyana clearly believes there is a connection, though no evidence has emerged that Pholobas was involved.

The legal saga around the R30-million judgment has also thrust an embarrassing spotlight on the municipality’s internal machinations, notably:

  • its belated decision to turn on Nkwanyana and discipline him for red-flagging the Pholobas contracts;
  • its unaccountable offer of a R30-million settlement to Pholobas; and
  • its contradictory efforts to backtrack on that payment, but effectively sabotage its own case by refusing to disclose how the settlement came about.

 

Last week newly installed municipal manager Musa Mbhele was forced to petition the Supreme Court of Appeal (SCA) to avoid the ignominy of paying out R30-million to Pholobas, a close corporation owned by one Bekezela Joseph Ngcobo, who is said to be “politically connected”.

The contested payment was effectively a damages award claimed by Ngcobo as a result of his alleged blacklisting as a contractor.

The merits of the case were never argued and the award was based entirely on a written offer of settlement which no-one at the city wants to take responsibility for.

Ngcobo’s court victory has officials and opposition parties livid over what appears to be at best monumental bungling or at worst a stitch-up.

The story goes back on dealings over a decade and Nkwanyana believes his son was murdered in a hit meant for him after he blew the whistle on Pholobas.

The murder happened on a weekday afternoon at the Nkwanyanas’ suburban home as family members milled around doing chores and homework.

Not long after Nkwanyana had arrived home there was a rattle at the front gate and Nkwanyana, thinking it was Ntuthuko’s friends, called to his eldest son to attend to the visitors.

Nkwanyana didn’t pay attention until he heard six deafening gunshots, reeled towards the sound, and saw his son lying on the ground.

As Nkwanyana raced to him, the shooters fired off two more shots and sped off. Ntuthuko was shot six times in the chest and gasped “Baba, Baba (father, father)” before dying in Nkwanyana’s arms.

On 18 September 2017, two months before the shooting, Nkwanyana had been suspended by the city for allegedly unlawfully terminating the Pholobas contracts in 2013.

Two months before that, on 21 July 2017, Pholobas’s Ngcobo had gone to court claiming R44-million from the city, having mysteriously gained access to an internal city report on Nkwanyana to support his case – a report that directly contradicted an earlier one.

After the shooting, Nkwanyana and his family went into hiding, and in Ngcobo’s court battle with the city Nkwanyana filed papers saying his son’s murder was meant to “silence me forever”.

Ntuthuko had “no known enemies, but resembles me in height and build”, Nkwanyana said.

He alleged his suspension from the municipality was on trumped-up charges aimed at removing him from the picture after Ngcobo’s company launched legal action against the city.

Contracts involving Ngcobo, he said, “were difficult to manage because I was aware that the company is known to have political affiliations”.

Let’s rewind to 2012 when municipal officials, including Nkwanyana, took issue with Ngcobo’s company which had contracts to disconnect illegal electricity connections.

Nkwanyana said Pholobas was overbilling the city — and the evidence shows it was.

Nkwanyana’s investigation saw the company refund the municipality R102,000 for billing for services not rendered.

Other irregularities were identified and referred to the City Integrity & Investigations Unit (CIIU).

In July 2013 the CIIU report recommended that “Pholobas Projects contractors, its directors or members… be removed from the Municipality’s database and be banned from receiving any Council jobs, through an application to the Blacklisting Committee”.

The company’s contracts were suspended and, on recommendation from Nkwanyana, the Municipality’s Bid Adjudication Committee resolved to cancel them.

The company was also disqualified from a new contract it had bid for. It appealed that decision, but an external arbitrator ruled moves against Pholobas were well grounded.

In July 2014 Pholobas took the matter to the high court in a bid to stop the blacklisting and to set aside or review the committee’s decision.

At the time the city opposed the application and Nkwanyana prepared a detailed affidavit, spelling out the basis of the steps the city had taken against Pholobas.

In a later affidavit Nkwanyana said, “I am uncertain as to whether Pholobas’ application was dismissed or whether it was simply not finalised on some other basis. I am however certain that Pholobas, and certain individuals within the Municipality, thereafter conspired to perpetuate a fraud on the Municipality.”

The 2014 court file has disappeared.

Then in January 2015, a new report by the CIIU recommended disciplinary action against Nkwanyana, saying he had a vendetta against Ngcobo and his actions had prejudiced the municipality which would incur legal fees and was at risk of a civil claim.

In response to the CIIU’s second report, the then deputy head of eThekwini’s customer and retail services – Nkwanyana’s manager – refuted the allegations in an internal memo and heaped praise on Nkwanyana’s defence of the public purse.

​No disciplinary action was taken at that stage.

In 2016 the ANC’s controversial Zandile Gumede became mayor, bringing with her a new set of alliances and priorities.

In July 2017 Pholobas was back in court, armed with the CIIU’s second report, with Ngcobo claiming the cancellation of his contracts was unlawful and demanding R44-million in compensation for his blacklisting.

In September 2017 Nkwanyana was suspended. Two months later his son was shot dead.

The city initially opposed Pholobas’s new application, but on 2 February 2018 the attorney representing the city, Siphiwe Moloi, wrote to the attorneys for Pholobas, stating, “We are instructed to offer as we hereby do, the sum of R30 000 000.00 in full and final settlement of your client’s claim…”

The offer was immediately accepted, but clearly there was some dissention within the city, because by the end of February no payment had been made, despite demands by the Pholobas attorneys.

In March 2018, Pholobas applied to have the settlement made an order of court, but the judge involved, Johann Ploos van Amstel, refused to do so without seeing the signed authority of the city manager.

Instead, he demanded that Moloi, the city’s attorney, and the city manager at the time, Sipho Nzuza, file affidavits explaining on whose authority the written offer to settle for R30-million was made.

When the matter came back before the judge a few weeks later he was unsatisfied with their explanations and suggested the matter be referred to the National Director of Public Prosecutions.

Moloi said he was instructed to act in the matter as the municipality’s attorney and had meetings with city representatives around the possibility of settlement. He said he interacted with the city legal advisers but wasn’t part of “internal processes where the municipality’s course of action was decided upon”.

Replying to Ploos van Amstel’s demand for more information, Moloi described communications between himself and the city as “privileged”.

Moloi then claimed the matter had never been “conclusively addressed as the agreements remained unsigned and incomplete”.

Nzuza, in his affidavit, said that shortly after his appointment in May 2017 he was asked to consider the settlement but that his “delegations” extended only to R5-million. He took the view that the matter should have gone to the “full

council” but to his knowledge the council had never approved the settlement. He claimed further that he did not know who authorised the settlement offer.

When the Pholobas matter came before the court again in October 2018, Nkwanyana launched an application to intervene in the case.
His affidavit said: “My suspension was a means to remove me from the system, to prevent the truth of the matter coming out by means of an affidavit which I would have deposed to, derailing the settlement agreement.

“The murder of my son had the purpose of silencing me forever. I might not survive this matter. I have given instruction that evidence in my possession be taken under commission so at the very least the truth will prevail in the event of my untimely and unnatural demise.”

Nkwanyana set out the controversial history of the Pholobas contracts in detail and denied he had ever been motivated by a feud with the company’s owner, Ngcobo.

Ngcobo persisted with his court action and on 4 November 2019 the issue came before a judge who referred the matter for trial to decide solely whether a binding agreement was concluded.

On 4 October 2021 the matter came before acting judge Murray Pitman.

Prior to that Nkwanyana’s attorneys withdrew, seemingly because he could not afford to persist with the intervention.

The city put up a limp defense.  It did not cross examine Ngcobo, nor lead any of its own witnesses about the settlement offer, relying instead on a technical argument.

In April this year Pitman ruled in favour of Pholobas, ordering the city to pay up.

The judge was unimpressed with Moloi’s affidavits, criticising them as “disingenuous and inconsistent”, and expressed surprise that the city hadn’t called Moloi to the stand to explain himself.

Whatever the reason for the city not calling him, Moloi’s 2 February 2018 letter regarding the R30 million settlement stood as “admitted as true and stands uncontradicted”, the judge found, adding that the “inference is unavoidable” that Moloi had “a valid and legitimate instruction by duly authorised representatives” of the city to make a settlement.

Pitman said despite the protestations in Moloi’s affidavits that the settlement agreement was not signed, the offer made on 2 February 2018 did not depend upon, or make a settlement conditional upon, the signature of a written document.

On 28 June 2022 the city submitted an application to Pitman to appeal his judgment. On 24 August 2022 he refused leave to appeal.

The following day the sheriff attached the city’s goods to recover Ngcobo’s R30-million debt by sale in execution, incensing unions, politicians, and the new city manager, Musa Mbhele who on 29 August submitted a petition to the SCA to appeal Pitman’s ruling.

In the petition, Mbhele tried hard to undo the city’s poor showing in the high court.

He argued that Judge Pitman misdirected himself because the Pholobas damages claim was bad in law: “In these circumstances, I am advised that the High Court should have refused to ‘rubber-stamp’ the manifestly unlawful settlement agreement. The High Court was duty-bound to inquire into the lawfulness of that settlement agreement.”

He also said Moloi was not authorised in writing to make the settlement, which Mbhele argued was a legal requirement.

Mbhele argued that just because Moloi was never called as a witness did not mean he had received due and valid authority from the city to make the settlement offer, which had been the inference drawn by the judge.

Mbhele said it was probable that Moloi could not identify the official who authorised him to make the offer – “because no such official exists”.

He criticized Moloi’s reliance on client privilege, noting that “written authorisation to make an offer to settle can hardly be confidential or privileged” and alleged it was more probable that Moloi “acted on a frolic of his own”.

He did not explain why the city had never waived its client privilege, as it was entitled to.

Meanwhile Nkwanyana has continued his lonely battle.

A detailed report delivered by Nkwanyana to eThekwini executive committee members in May 2022, following the Pitman judgment, says that Pholobas’ original claim had no prospects of success whatsoever.

It argues, “The only conclusion which can be arrived at on an assessment of the objective facts of this matter is that a person or persons within the employ of the Municipality colluded with Pholobas to perpetuate a fraud on the Municipality: initially by creating the Second CIIU Report which ignored all the relevant facts, misstated others and arrived at an unsustainable conclusion, and thereafter by agreeing to settle Pholobas’ claim.”

After two years of being suspended, Nkwanyana’s suspension was lifted and he was seconded to the solid waste department, pending the finalisation of investigations into him.

Nkwanyana returned to work on 22 July 2019 with bodyguards. Disciplinary issues against him remain unresolved.

In his report to the executive committee he says, “It is difficult to conclude other than that the decision taken to discipline me has been actuated for an ulterior, mala fide purpose.”

The city’s response to a list of questions drew a curt one-liner: “This matter is currently before the court. Therefore we cannot give comment at this stage.”

In response to questions, Moloi said he was still an attorney working for eThekwini, the matter was still in litigation and he could not comment without the city’s say so.

Through his lawyer Ngcobo said the matter was still before court and he did not intend to deal with “serious and defamatory statements allegedly made to the executive committee of the eThekwini municipality save for recording that such averments are expressly denied”.

Simo Maduma, Nkwanyana’s lawyer, said his client was not allowed to speak to the media.

INVESTIGATOR:

Buyeleni Sibanyoni and Sam Sole

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