City under fire for ending contract

Doubts have been raised over the eThekwini Municipality’s legal basis to terminate the services of a forensic investigations company that apparently uncovered R2 billion in losses resulting from fraud and corruption.

Integrity Forensics Solutions (IFS) accused the municipality of disregarding uniform court rules and legally defined deadlines ahead of their upcoming court showdown.

IFS said the municipality was supposed to have made available its record of documents and other evidence, which justified and supported its action against IFS.

The latest deadline the municipality missed in furnishing the requested record was March 19.

IFS responded the next day with an application for a court order to compel the municipality to produce the information.

The matter is due to be heard in the Durban High Court on May 20.

Given the overwhelming case load carried by the municipality’s City Integrity and Investigations Unit (CIIU), IFS was among 17 forensic investigations companies contracted in March 2018 for two years to handle unresolved matters.

IFS were central to investigations in the R320 million DSW tender saga that is presently being handled by the courts and has former mayor Zandile Gumede and other City officials among the accused in the matter.

The company was believed to be in an advanced stage in its probe into affairs of the City’s water and sanitation department, which yielded suspected malfeasance amounting to R1.6bn.

Due to its close working relationship with the CIIU, its level of involvement in the said matters and the DSW court proceedings, various high-ranking officials and committees endorsed IFS’ contract extensions at various times.

Weeks after former CIIU head Mbuso Ngcobo, who initially engaged IFS, resigned in July last year, the forensics company learnt about their termination via a SAPS official whom they had been working with.

In the court action IFS initiated in February, they said Ngcobo’s replacement, Thulani Ntobela, did not issue them with a formal letter of termination. IFS argued that their contract was terminated unlawfully.

However, in a letter that Ntobela sent to the policeman, who is attached to the Directorate for Priority Crime Investigation unit (Hawks), about parting ways with IFS, he said the company did not have the required permissions for their subsequent contract extensions.

IFS questioned how the 15 other forensic investigations companies that were engaged by the municipality along with them in 2018, continued working with similar contract extensions.

Having raised various grounds of objection in their February court application, IFS argued that their contract was terminated unlawfully.

Therefore, that decision must be set aside, and payment of an outstanding amount due to them (R1m) for work done between July and August 2023 be made.

The municipality had 15 days (February 29), to indicate whether it intended to oppose IFS’ application, and provide the record that substantiated the termination decision.

The said record would have indicated to all and sundry the basis for the decision and it would have enabled IFS to challenge the municipality’s grounds for termination, if they so desired, with supplementary court papers.

Ethekwini’s indication to oppose IFS’ action arrived on March 4, four days after the deadline, but did not submit the record.

It served a notice to the municipality in terms of Rule 30A(2) of the Uniform Rules of the High Court regarding non-compliance (March 5) and indicated they had a further 10 days to submit the record.

When that deadline was ignored, IFS lodged an application for an order to compel the municipality to produce the record.

Attorney Sandile Khoza, a director at law firm Norton Rose Fulbright, IFS’ legal representatives, penned an affidavit in support.

Khoza said the municipality’s non-compliance prejudiced his client, and the matter was of public interest as it related to alleged acts of corruption involving public funds, which was being dealt with in courts.

In a letter Khoza directed to the municipality’s legal team on March 19, requesting the record, he said that if it was not provided on the day, his client would have “no other option but to assume that no record exists for the impugned decision”.

The municipality refused to comment.