Lawyers representing former Sports Minister Zizi Kodwa’s co-accused, Jehan Mackay, have identified SITA’s confidential internal report explaining the cancellation of the Department of Home Affairs (DHA) tender, which is at the centre of their corruption case, as a smoking gun they intend to use to dismantle the State’s case against the pair.
DHA relies on SITA to procure and manage its digital infrastructure through tender processes.
Mackay’s lawyer, Ian Small-Smith, has pointed to a report compiled by Nombuyekezo Mokgoko, Senior Manager of Compliance and Governance at SITA, as one of the reasons the State should throw the corruption case against his client and Kodwa out the window.
Small-Smith attached the report to the written representations he sent to the then NPA Head, Shamila Batohi, before she took a decision to reinstate the corruption charges against Kodwa and Mackay, ostensibly two days before she retired from her cushy job.
Small-Smith is now banking on the report to sway the newly appointed NPA Head, Andy Mothibi, to exculpate Kodwa and Mackay and not reinstate the corruption charges against them.
He contends that because of this report, which is part of the papers he filed in the Joburg High Court to interdict the NPA from reinstating the case, Mokgoko is a crucial witness for the State.
“Nombuyekezo Mokgoko (“Mokgoko”), the Senior Manager: Compliance and Governance at SITA, is an important witness for the State. In her statement (A16 to the docket), she sets out in detail the circumstances around the withdrawal of the tender. She provided the State with a resolution of the Board Procurement Committee (BPC) that indicates that the BPC, on 23 October 2015, provided the reasons for the tender to be cancelled. The BPC cites major specification deficiency as per their BPC resolution,” Small-Smith stated in the representations.
The tender, for which Mackay’s entity, EOH Mthombo, was among the bidders, was initially scheduled to be awarded by 15 July 2015. However, SITA’s internal records show the procurement process became riddled with irregularities during the technical and pricing evaluation stages.
According to the representations, the original project plan had to be amended after the technical evaluation committee was recalled twice to clarify findings, while bidders were repeatedly asked to explain pricing because of deficiencies in the costing model.
The lawyers rely heavily on a report by SITA official Mokgoko, which identified numerous defects in the tender process, including a lack of alignment between the technical specifications and the costing model, obsolete goods being specified, incomplete specifications that failed to meet business requirements, and ambiguous evaluation criteria.
The report further states that any material changes to the specifications before bid closure would have affected the competitive ranking of bidders.
Mackay’s lawyers say a follow-up meeting held on 23 October 2015, attended by senior SITA executives, reached consensus that the tender should be cancelled because proceeding with it exposed SITA to possible litigation.
According to the report, there had already been three different technical evaluation reports, each producing different outcomes as additional input was sought from Internal Audit and Legal Services. Preparing a fourth report would have further compromised the procurement process.
The submission recommending the cancellation was compiled by commodity manager Juanita Wagner and reviewed by Strategic Sourcing head Tinyiko Ranwashe. It was supported by Chief Procurement Officer Sydney Tshibubudze, Deputy CEO Lt-Gen Justice Nkonyane (Ret) and then-CEO Dr Setumo Mohapi.
The legal team also relies on SITA’s Internal Audit Report, dated 2 October 2015, which highlighted extensive shortcomings in the procurement process.
Among its findings, auditors said the business case failed to indicate the financial implications of the tender or explain how the project would be funded or how the expenditure would be recovered.
The audit also found that mandatory technical standards were omitted from the bid documents, preventing bidders from demonstrating compliance.
Auditors further criticised the handling of ICASA licence requirements, saying the technical evaluation committee improperly altered mandatory bid requirements after the tender had closed by disqualifying bidders, including Dimension Data, Telkom SA and EOH Mthombo, over uncertified licence copies.
According to the report, such changes after bid closure violated National Treasury’s supply chain management guidelines because they undermined the fairness of the procurement process.
Internal auditors also found that the pricing model was fundamentally flawed because it failed to distinguish between the primary and secondary solutions, creating confusion among bidders during the pricing evaluation.
The audit concluded that the tender should instead have been cancelled and re-advertised with corrected mandatory requirements.
Mackay’s lawyers argue the audit findings prove the tender was withdrawn for legitimate procurement reasons and not because of any interference by the accused.
“The State has obtained uncontested and reliable evidence that the DHA tender was cancelled for valid and lawful reasons,” the representations state.
The legal team further argues there is no evidence that either Mackay or Kodwa played any role in the cancellation of the tender, or that they unlawfully influenced any government procurement process.
They also point out that the tender was never re-advertised or awarded to Mackay or any of his companies.
Addressing the corruption allegations, the lawyers argue there is no evidence linking payments made by Mackay to Kodwa to any corrupt act.
“There is no probable evidence that any contribution towards the co-accused by the accused was paid as gratification for any corrupt activities. It is certainly not a crime to pay a friend,” the representations state.
They further contend that while the State may prove Mackay sent Kodwa an email asking him to look into the tender because he believed “games were being played”, prosecutors cannot prove that Kodwa acted on the request.
The defence also argues that when the payments were allegedly made, Kodwa was ANC national spokesperson and held no position that enabled him to influence the outcome of the tender.
“We pause to reiterate that the alleged instruction and sharing of funds does not amount to a crime, as it is not a crime to share one’s wealth with another,” the lawyers state.
They argue that because there is no evidence of a link between the payments and any corrupt activity, and no evidence that anyone influenced the cancellation of the tender, the State’s case should collapse.
NPA Spokesperson Kaizer Kganyango said they will not comment because the matter is sub judice.” We don’t comment on such matters because they are before the court of law,” he said.
