Mphaphuli Consulting appeals SIU report at the Constitutional Court

Burgersfort

Mphaphuli Consulting PTY LTD has earlier this month filed an appeal with the Constitutional Court of South Africa to set aside findings of a report by the Special Investigating Unit (SIU), which was submitted to the President on 10 September 2019.

The report was issued to Mphaphuli Consulting by the Presidency on 10 December 2020, after the company exercised the provisions of the PAIA Act upon learning of the report’s existence in July 2020 through the media’s interview of the SIU.

The report entails tender irregularities against Mphaphuli Consulting in relation to a multi-million electrification contract, dubbed “Operation Mabone”, in various villages of Fetakgomo Tubatse Local Municipality (FTLM).

In the report, the SIU stated that the investigation of Mphaphuli Consulting was triggered by a request on 10 March 2017, by the Mayor and Municipal Manager of FTLM.

This was after the Supreme Court of Appeal had on 06 March 2017 dismissed an appeal by the municipality regarding a decision by the Polokwane High Court, which had made an order for the payment of due monies to Mphaphuli Consulting.

The Supreme Court of Appeal had stated in its order that “The application for leave to appeal is dismissed with costs on the grounds that there is no reasonable prospects of success and there is no other compelling reason why an appeal should be heard.”

The adverse findings made by the SIU were that Mphaphuli Consulting overcharged the municipality in the concluded signed contract agreements.

Mphaphuli Consulting Director, Lufuno Mphaphuli, asserted that the findings are unsupported by evidence and that the SIU disregarded previous court decisions and did not interview the accounting officers who signed the agreements in making its findings.

“Additionally, the SIU’s investigation was done without authorization by the President as required by the SIU Act because there is no SIU proclamation under the name of the Fetakgomo Tubatse Municipality,” he said.

Mphaphuli Consulting approached the Polokwane High Court for review of the report and was subsequently unsuccessful, with the High Court dismissing the application for review on 03 March 2022. On 11 April 2022, the applicant’s application for leave to appeal was also dismissed despite the High Court’s finding that “It 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 Consulting later approached the Supreme Court of Appeal for leave to appeal, which was dismissed on 29 August 2023 with costs and the judgment stated that “the report has been in the public domain for some four years and to the extent that it was the cause of any reputational harm, setting it aside now can hardly right that wrong”.

Mphaphuli indicated that the now-filed appeal raises crucial questions concerning the jurisdiction of the Constitutional Court and the order made by the Supreme Court of Appeal.

“We believe that the Supreme Court of Appeal erred in ordering Mphaphuli Consulting to pay costs in constitutional litigation and not setting aside the costs order of the High Court. The Bio-watch and Harrielall, which are seminal decisions in constitutional litigation between the state and private parties, support our view in this regard,” he explained.

Mphaphuli indicated that the filed appeal raises various questions that the Constitutional Court is expected to answer, including: Whether an SIU report with adverse findings against a particular person need not be reviewed and set aside merely because it has been in the public domain for years, whether section 16(2)(a)(i) of the Superior Courts Act may be invoked by the Supreme Court of Appeal in a situation where the court a quo has already made a finding that the report “negatively affects current business and future business dealings of the applicant”.

Whether the fact that a party aggrieved by the SIU report, which was found to have negative effects on such a party’s current and future business, is alone proof that the appeal will have practical effect by setting aside the impugned SIU report and vindicating the constitutional rights of the aggrieved party.

“It is our assertion that the answers to these questions are necessary to ensure that justice is served. Additionally, the matter raises constitutional issues by invoking the provisions of section 33 of the Constitution, given that it is a review application against public action taken against Mphaphuli Consulting,” he said.