Court decides against BCM in R74m case
Elated Fani plans demands for redress
AXED Buffalo City Metro municipal manager Andile Fani yesterday vowed to go after city officials in a bid to clear his name following a scathing ruling by a full bench of Supreme Court of Appeal (SCA) judges on Friday.
Fani was suspended and subsequently fired by the metro after it accused him of flouting the Municipal Finance Management Act by appointing Cape Town-based Asla Construction (Pty) Ltd without following proper procurement procedures.
The 2014 contract was for the construction of low-cost housing in Reeston for the benefit of Duncan Village shack dwellers at a cost of R74-million.
The contract was set aside by the Grahamstown High Court in August last year when it ruled the deal was invalid and unlawful. Asla then appealed. SCA judge Kevin Swain found on Friday the high court had erred in its ruling and set it aside.
He said Grahamstown High Court Judge Elna Revelas had failed to properly consider the nature and extent of the prejudice to be suffered by the shack dwellers of Duncan Village and broader public interest by setting aside the contract.
Swain said there was no explanation given by BCM as to why it took 15 months to seek an order to review the awarding of the contract instead of the maximum time allowed under statutory law, which is 180 days. “The only explanation provided by BCM for the delay, namely that it became aware of the alleged irregularities relating to the award of the Reeston contract when a forensic report was presented to it on October 28 2015, was no explanation at all,” Swain said. He continued: “A glaring omission by BCM is that no affidavit was obtained from [BCM CFO] Mr Vincent Pillay. He would have been able to explain why the contract was awarded to Asla, why the contract was signed and why Asla was then instructed to proceed with the work.
“In addition he would have been able to explain why the first payment was made, how he discovered that the award of the contract was irregular and why it took 12 months from the time the contract was awarded to discover this.”
Swain said it could not be disputed that Asla “incurred substantial expenses” by carrying out BCM’s instruction to proceed the Reeston contract”.
Swain said the high court “based its findings on evidence that was largely inadmissible”. He said the court had based its decision on the evidence provided by an external auditor, one “Ms York”, appointed by BCM to investigate the contract.
“The evidence, however, was in most parts inadmissible. The report she compiled which formed part of the basis of her affidavit was based on documents provided to her by BCM, as well as interviews with BCM employees. Documents relied upon in formulating her views were not annexed to her affidavit. As a result, her evidence in these respects constituted inadmissible hearsay evidence,” he ruled.
Swain ordered that Asla’s appeal was successful and that BCM pay the cost of two counsels appointed by Asla.
Fani said yesterday: “I do not want to be reinstated because my contract ended in March. I have suffered because all I said was ‘no, no, no’ to wrong things.
“I have already instructed my lawyers to make sure that BCM comes out to the public and clears my name.
“The court judgement has to be respected.
“My lawyers will follow all the legalities concerning my name being cleared and submit demands regarding all that I have suffered in the process of them denting my name.”
BCM spokesman Sibusiso Cindi did not respond to request for comment yesterday.