DOT slammed over Tasima payments
A High Court judge has lambasted both the National Department of Transport (DOT) and the Road Traffic Management Corporation (RTMC) after Tasima, which runs the Electronic National Traffic Information System (eNatis), had to go to court four times to get paid.
Tasima took the department, the director-general (currently filled on an interim basis by Maria du Toit), the minister (currently Dipuo Peters), and former eNatis project manager Werner Koekemoer to court to force the department to comply with three previous orders, pay up R118 million and give it the necessary tools to do its work.
Although Tasima won that round, with the department honouring the ruling under "protest", the battle is not over. The department will appeal the decision at the Supreme Court of Appeal and is contesting aspects of the contract, although it will not divulge what.
According to the judgement, the underlying contract - which has come under scrutiny by the auditor-general who found the department had overpaid - is in dispute.
The ruling, recently handed down by acting judge Coram Ebersohn at the North Gauteng High Court, found the department was in contempt of three prior court orders by not paying Tasima what it was owed, was obstructive in asking for supporting documents when these had not previously been sought, and attempted to stop the company from fulfilling its duties.
Ebersohn found in favour of Tasima and awarded costs against the department as well as the RTMC. The judge also ordered that payment and some other outstanding issues should be made within a day, failing which the DG and Koekemoer were due to be jailed for 30 days. The judge also ruled that outstanding governance issues should be sorted out.
Department of Transport spokesman Tiyani Rikhotso says the ruling has been honoured, but under "protest". "We respect courts of law."
Rikhotso says there are a number of issues with the contract that he is confident will come out when the matter is appealed, although the Supreme Court of Appeal has yet to set a date. He expects the department to be victorious on appeal.
A dispute around the duration and status of the agreement arose about a year ago and Tasima took the department to court to force it to comply with the agreement. "This is the fourth contempt application which Tasima has brought since July 2012, in order to enforce compliance with various court orders granted in its favour by this court against the Department of Transport and others," writes Ebersohn.
The department awarded the initial eNatis contract to Tasima, which developed and still operates the system, in December 2001. The system allows government to administer the licensing of motor vehicles, drivers' tests, learner licence tests, contraventions of road traffic legislation and the roadworthiness of vehicles.
It also acts as the interface between the department, all licensing institutions and municipalities, the public and a variety of institutional users such as the South African Police Service, motor manufacturers and banks.
Tasima wanted to be paid the R118 million it was owed and also accused the department of failing to sign off on authorisations for payment, and not appointing a project manager after Koekemoer was removed in May this year.
The company also said the department was refusing to authorise the conclusion of contracts needed for it to fulfil its operational mandate under the agreement. Tasima said the department's refusal to accept paperwork, so as to authorise payments, would either jeopardise the system or its business, or it would have to accrue additional expenses.
In response, an affidavit was filed by Koekemoer, who apparently also deposed the affidavit on behalf of the DG, although there is no proof he was authorised to act on behalf of the DG. "The allegation of authority is remarkable given Koekemoer's sudden removal from the eNatis project and is disbelieved," wrote the judge.
In response to the failure to comply with the three previous court orders, Koekemoer said he was removed from the project and it had moved to the RTMC, which removes the responsibility for complying with the previous rulings. The judge said: "No proof of this 'major occurrence' is attached."
Ebersohn also says the department and the DG - as the accounting officer - are still liable under the agreement and the court orders. "It is plain that ...the DOT has adopted a strategy of hamstringing Tasima's execution of the agreement."
Koekemoer also states the department was acting on legal advice and its conduct is not mala fide and does not amount to contempt.
The judge noted: "For the respondents to aver that their deliberate failure to comply with a specific and direct court order can, by merely listening to legal advice, excuse them and their failure to comply with the court order no longer constitutes contempt of court, is just not on."
The RTMC, which had lodged an application to intervene, indicated in its papers that it would recommend the DOT audit all payments to Tasima for the past year to make sure the payments were legitimate. The judge says this is "most baffling" and notes that Koekemoer never saw fit to call for an audit, and it is unclear why one is now being called for.
"The only reasonable explanation is to continue to harass Tasima and thereby make its continued operation of the eNatis system impossible so as to force a 'divorce' between DOT and Tasima."
Ebersohn added that the court got the clear impression the respondents were "maliciously implementing steps to cause Tasima to financially crash so as to get rid of Tasima and then employ somebody else". The RTMC says the underlying contract is in dispute.
Several attempts were made to get comment from Tasima, while the RTMC was not immediately able to comment in detail, but indicated a legal process was under way.
In January, the auditor-general released a report that found the DOT had grossly overpaid for the national database of vehicles. Moreover, the database is ineffective because data is not being correctly captured, which could lead to a procedural nightmare for motorists.
According to the auditor-general's performance audit on the use of consultants at selected departments, Tasima was appointed on a five-year contract, which expired in May 2007, for R594 million.
However, the AG found that after the contract expired, after a one-year extension, it was agreed the consultant would continue operating on a monthly basis. A total of R936.2 million was paid to the consultant over four years, which included services not in the contract.
The AG's report found Tasima was meant to start a handover of the deal in May 2007, and that it accepted responsibility for the transfer management plan, "but did not provide it". The transfer should have been wrapped up by last April.