Legal View

Nyanda instructed Mohlala to suspend tenders

Johannesburg, 28 Jul 2010
Read time 3min 40sec

Communications minister Siphiwe Nyanda had issued instructions to dismissed Department of Communications (DOC) director general Mamodupi Mohlala to suspend all tenders, according to Mohlala's affidavit.

Mohlala, yesterday, filed an urgent application with the Labour Court to have her dismissal overturned on grounds of legality and unfairness, that she be allowed to resume her duties immediately, an that the minister had no authority to dismiss her.

An annexure to her founding affidavit is a letter from Alfred Mashishi, Nyanda's chief-of-staff, instructing Mohlala to suspend a range of tenders including those for the development of remuneration guidelines of non-executive directors of SA Post Office, Sentech, SABC and Icasa; the appointment of service providers to investigate suspected fraud from the forgery of official signatures with regards to the staged NEPAD meeting from 4 to 7 May; appointment of a service provider to advise the department on Telkom's BEE status, and others.

The instructions to suspend the tenders, Mohlala alleges, were issued to her first via SMS and then the letter stating “Listed tenders but limited to these only”, was sent. However, Mohlala says in her affidavit that there was a typographical error and that the headline should have included the word “not” and so it meant other tenders had to be suspended too.

Nyanda issued a statement on 15 July denying that he was involved in the issuing or adjudication of tenders.

Mohlala claims in her affidavit that in terms of the Public Finance Management Act, it was she, as director general and the department's accounting officer, who had the authority and responsibility in relation to procurement processes.

Attached to Mohlala's affidavit is a letter sent to her by Nyanda saying that the Auditor General had advised all ministers to provide oversight on financial matters.

“It is on this basis that you were instructed to suspend the tenders issued only until I had spoken to you about them. It was not an instruction to permanently suspend any tender process and/or delay any such processes for an unreasonable time, and I deny that any such conduct in any way constitutes any form of unfair labour practice,” Nyanda states in that letter.

No authority

Mohlala also contends that the minister had no authority to take a unilateral decision to dismiss her. She states that President Jacob Zuma made her appointment as director general together with his cabinet and, furthermore, since the minister is the complainant against her, he is biased in this regard.

“The Minister has not claimed to have been delegated any authority by the President or the Cabinet to take such a decision. Even if he were to make such a claim, such a delegation would be unlawful and in any event the Minister was precluded from taking such a decision because of his direct interest in the matter,” she states in her affidavit.

Nyanda also wanted Mohlala to reinstate the suspended DOC human resources director Basani Baloyi and to drop all further legal proceedings against her despite legal advice that a Labour Court ruling to reinstate Baloyi was flawed.

Baloyi was placed on suspension due to a range of charges alleging she misused public funds, especially for an official trip to Cuba, and the unauthorised appointment of service providers.

Human resources

Mohlala claims that all human resources issues, including those relating to officials who were placed on suspension, fell under her authority as director general.

“I was also concerned about other instances in which the Minister and his Chief of Staff had, in my view, acted in a manner which undermined and intruded upon my legal responsibility,” Mohlala states in her affidavit.

Nyanda's spokesperson Tiyani Rikhotso says that the minister has been notified about Mohlala's urgent Labour Court appeal and that, together with the State Attorney, he was were working on a response.

“For the meantime we stand by the earlier statements made by the minister with regard to this whole issue,” he says.

The case is scheduled to appear before the Labour Court this Friday, 30 July.

Read the affidavit here.

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