Peter Harris refused to listen
Following the appointment of the Resolve Group, headed by Peter Harris, to investigate various issues relating to the functioning of the Gauteng Department of Public Transport, Roads and Works, I made a number of submissions – in formal memorandums, through emails and at least three interviews conducted by Peter Harris himself.
In these submissions, I did my best to respond to each and every issue or allegation that was put to me. One such allegation was that the department made excessive use of external consultants – particularly legal advisers and attorneys.
Following allegations by MEC Ignatius Jacobs, and subsequent investigations, Mr Harris found that indeed the department made excessive use of external consultants and “that these consultants earn well over a quarter of a million”.
I was astounded by this finding, because to the best of my knowledge, governments the world over make use of external consultants. It is a worldwide phenomenon and there is good reason for it. Governments are generally the biggest organisations in the societies in which they exist, the biggest consumers of goods and services. That is why they need outside help in the form of consultants to assist them to achieve their objectives.
Taking Mr Harris’s argument to its logical conclusion, if the department was wrong in using the services of consultants, then I put it to him that he needs to explain why it was correct for him, as a consultant within the Resolve Group, to have been appointed by the government to undertake this investigation. He needs to explain why his investigation should not have been undertaken by the Legal Services Directorate within the department, given his view that this directorate is fully fledged and well capacitated. Why should his appointment not be viewed as wasteful and irregular expenditure?
What reminded me of this finding was a tragic story in The Star newspaper on Friday November 4 2011. For the purpose of this input, the focus is not about the numbing account of pure neglect by some health professionals, but about what appears to have been happening in the background in the aftermath of the lifelong damage inflicted on Ms Thembeni Khanyi’s son.
According to the newspaper article, the parents successfully sued Gauteng Premier Nomvula Mokonyane for about R 9.25-million. The article goes on to say that “… Premier Nomvula Mokonyane has ignored a Johannesburg High Court order instructing her to pay R9m towards the medical costs and upkeep of the boy …”.
From the story, it appears that Judge Nigel Willis ordered the premier to pay, and her lawyers (I presume this refers to the Legal Directorate in the Office of the Premier, or to the State Attorney) applied for leave to appeal, which was granted. When the appeal period lapsed, her lawyers had not filed papers, prompting Khanyi’s lawyer to obtain a warrant of execution that would see 270 computers and desks, furniture, printers, copiers, fax machines, 10 small fridges and microwaves and filing cabinets being attached. If no payment is made within the next 30 days, the article said, the sheriff will sell the items in execution of the debt in line with section 3(8) of the State Liability Amendment Act 14 of 2011.
What got me to reflect on this matter is the joint statement attributed to Ms Matlakala Motloung, from the premier’s office, and health spokesperson Simon Zwane, in which they say they have applied for condonation to file late papers. The reason advanced for the failure to file papers is “… due to lack of records, the department could not file heads of arguments on time. It was only when the sheriff approached the department with a writ did it come to light that the appeal has lapsed…”.
During my time as head of department, I made sure that I had sufficient pool of good, diligent lawyers, drawn both from within the department and from private practices. I had no doubt that the department’s legal section comprised highly competent people. But I also knew that on important matters I could not depend on the State Attorney (with due respect). Here we have a case of attorneys, acting on behalf of the premier of the province, who either did not keep records and a track of dates for filing important court papers, or simply forgot to file.
The government in general, and the department in particular, in the execution of its mandate and in its everyday operations encounters complex legal issues that require intricate expertise in specific fields of law. The legal consultants appointed by the department render expert legal support to the legal directorate of the department and the department as a whole. The services rendered by the aforesaid consultants entail, inter alia, extensive legal research, engaging the services of counsel and providing objective legal advice to the department that may comprise the drafting of legal opinions and agreements.
While I agree with the MEC that the department had an operational legal unit, I, however, submitted that it is not abnormal for a government department to engage the services of private legal consultants and the state attorneys. I submitted that it is in fact necessary, in view of the immensity of legal issues that the department is required advise on, to have attorneys on its panel who are familiar with the dynamics of transport and are readily accessible to provide urgent advice.
I therefore disagree with the assertion by MEC Jacobs and the finding by Peter Harris that the appointment of legal consultants by the department resulted in fruitless and wasteful expenditure. I submitted that the appointment of legal consultants to the department is in fact aimed at preventing irregular, fruitless and wasteful expenditure – as is now the case with the office of the premier. I did make this point to Peter Harris, and he refused to listen.
During the interviews with Mr Harris, I made the point that it was entirely untrue that consultants are appointed to displace internal capacity. On the contrary, the intention at all times is to ensure that these consultants complement and fortify internal capacity. Mr Harris, in his findings, alleged that the department has a fully fledged legal unit. This is completely untrue. The unit is not fully fledged and not in a position to undertake all work of a legal nature, including litigation, drafting of legal opinions etc.
I have no doubt that this situation exist in most, if not all, government departments. It is always necessary to use external law firms and senior legal counsel to advise the department on a number of complex legal matters.
Heeding the lessons
For my courage to accept and compensate for the shortcomings and limitations of the department, I was subjected to untold misery of having my name dragged through mud in public. I had to face a disciplinary enquiry for taking a decision to increase the capacity of the state by engaging the services of legal experts.
I tried to explain the rationale of my actions, but nobody cared to listen. I do hope that those who are tasked with the responsibility of advising the premier will heed the lessons from such experiences. As for Mr Harris, I hope that next time he is appointed to investigate, he will take time to listen – because had he listened, he would have provided the premier with somewhat more informed findings.