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Judge throws out claim and rules that security tender was irregularly awarded
Former Mpumalanga safety and security department head honcho Thulani Sibuyi has failed in his bid to claim R19 million in compensation from the state for his arrest five years ago for fraud in the awarding of a R1.2 billion tender.
Sibuyi filed the lawsuit against then police minister Nkosinathi Nhleko, and former national director of public prosecutions Shaun Abrahams, soon after he and GNT Security owner, Vusi Mashaba, were acquitted on charges of fraud, corruption and contravention of the Public Finance Management Act.
The Hawks accused Sibuyi of awarding the security services tender to GNT Security even though the company allegedly submitted a fraudulent or forged tax clearance certificate with its bid.
The tip-off about the alleged corruption was reported via the presidential hotline.
At that time, the department awarded tenders worth R7 billion for security at government buildings. Losing bidders, worried about the processes, unsuccessfully tried to interdict the awarding of the tenders after complaining that they benefited only KwaZulu-Natal-based companies.
Sibuyi sued the state for unlawful arrest and detention, malicious prosecution and defamation.
However, Sibuyi and Mashaba were acquitted after the court ruled that the warrant of arrest was “defective” as it did not list the offences and the dates when the crimes were committed.
Advocate Patrick Nkuna, the prosecutor, had argued that there was a prima facie case against the two men based on information in the docket – which included the service level agreement, and bid committee and audit reports and decided to prosecute.
. Sibuyi had signed the GNT Security contract on November 1 2011, a month before Mashaba signed;
. The bid adjudication committee and the Auditor-General’s reports were presented to him after he had already signed the contract. Under normal circumstances, Sibuyi should have obtained the reports from the bid adjudication committee, the Auditor-General and the State Security Agency before signing the contract;
. After his arrest and release on bail, Sibuyi did not check the validity of GNT Security’s tax clearance certificate with the SA Revenue Service to cancel the contract;
. Out of 13 bidders, only GNT Security did not have a valid tax clearance certificate; and
. It was Sibuyi’s responsibility as the accounting officer to check if the tax clearance certificate was valid.
“This evidence is troublesome, particularly in light of the fact that Sibuyi was aware of the importance of a valid tax certificate,” said Basson.
The court dismissed Sibuyi’s argument that the decision to appoint GNT Security was done by the bid committee and he only appointed the company on its recommendation.
Coincidentally, the chairperson of the bid evaluation committee was William Mthombothi, Sibuyi’s successor as head of department, who told the court that his committee did not look into the validity of GNT Security’s tax certificate but only checked if the documents were originals or copies.
Concerning the unlawful arrest and detention, the judge found in Sibuyi’s favour.
“The mere fact that Sibuyi was fully aware of the reasons for his arrest does not cure the defects in the warrant [of arrest],” he said.
Sibuyi’s claims for malicious prosecution and defamation were dismissed and he was slapped with a punitive cost order to pay two-thirds of the minister of police’s and national director of public prosecution’s legal costs, amounting to about R500 000.
He was claiming R15 million in general damages; R1.5 million for deprivation of freedom, trauma and stress; R1 million for loss of income; R1 million for defamation; R452 000 for legal fees and R2 250 for medical expenses.
Sibuyi and Mashaba’s criminal case may be back in court as the National Prosecuting Authority is considering appealing the Nelspruit Regional Court’s decision to acquit the duo.
“The NPA is considering appealing the accused’s discharge in terms of Section 174 of the Criminal Procedures Act of 51 of 1977,” said NPA spokesperson Monica Nyuswa.
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