analysisBy Sipho Hlongwane
Johannesburg — Mmbulahiseni Solomon Tshitangano tried to blow the whistle on what he believed was a dodgy tender awarded by the Limpopo education department to EduSolutions. He was fired from his job, and is now in labour court to fight his dismissal. His version of events is as depressing as it is illuminating.
Solly Tshitangano worked as a general manager for finance in the Limpopo department of education from June 2009. He was appointed as the acting chief financial officer from March to August in 2010. A dispute over a single tender back then would escalate to involve the local MEC for education, the premier, basic education minister Angie Motshekga, the auditor general and even the president of the country. The dispute has resulted in Tshitangano being fired, a decision he is now challenging in the labour court. Simultaneously, the Limpopo education department decided to cancel the contract unilaterally, claiming that the processes were tampered with - a fact it denies in its labour court filings.
In May 2010, the department advertised a tender in the Sowetan and the tender bulletin (numbered 'Bid EDPP 521'). According to Tshitangano's court papers, the tender was to outsource the "procurement and distribution of Learner Teacher Support Material (LTSM) to schools in the Limpopo province". Some 23 bid documents were received, and the bid adjudication committee immediately disqualified all but one for technical reasons. Apparently the unfortunate 22 companies did not match the criteria required in their paperwork. The only bid that was accepted was that of EduSolutions.
Tshitangano claims that he immediately raised concerns. He said that the terms of the bid approval document did not clearly or unequivocally state whether its approval of the preferred bidder (EduSolutions) was conditional or not.
"It was not clear on what basis the tender was awarded to EduSolutions, given that the competitive bidding process necessarily involves the assessment of tenders on a points scoring system aimed at ensuring that the bidder has complied with all the regulations. The bid approval document merely stated that only one of the service providers met the criteria," the court papers say.
Basically, Tshitangano was arguing that there was no measurable basis upon which the tender was awarded to EduSolutions.
Prior to this particular function going out to the private sector, the government used to negotiate directly with manufacturers, and would get a 30% discount on bulk ordering. When EduSolutions stepped in, the company also negotiated that discount, but pocketed most of it, while still billing for management fees. This made the whole exercise of outsourcing this function more expensive.
In January 2011, EduSolutions billed the Limpopo government for R108,775,886. Under the previous arrangement (which the bid tender document said nothing about changing), the government was entitled to a R32.6-million discount. The invoices filed with Tshitangano's papers show that only R9.7 million was received by the government. EduSolutions pocketed the difference.
Just a month before, prior to any work being done, 90% of EduSolutions' administration and management fees were paid. Tshitangano says that this condition was not included in the bid documents and thus kept the other bidders out of it.
Aside from granting EduSolutions a 70% cut of the discount, the service level agreement between the company and the Limpopo government also extended the work period to 2014 - one year longer than the tender bid advertised.
Tshitangano initially raised the matter with head of department Bennie Boshielo, and when he was ignored, he approached the Public Protector and the auditor general. The provincial office of the protector responded and asked for the department to provide documentation - which they failed to do for five months.
According to Tshitangano, the MEC for education in Limpopo, the premier, the minister for basic education and the president were all written to.
Save for the premier and the MEC, his letters were never even acknowledged, much less responded to.
In the meantime, the department indicted Tshitangano for "fruitless and wasteful expenditure" incurred while he was the acting chief financial officer. In August 2011, he was sacked for this. His court papers say that the actions taken against him were prejudicial and actually connected with his report to the Public Protector.
Boshielo is no longer the head of department, and the contract between EduSolutions and the department has been cancelled. The company is currently fighting that cancellation in the North Gauteng High Court, claiming that this commercial agreement was unilaterally reneged by the department and not by obtaining a court order. In its papers in that particular case, the department argues that it had the right to cancel that contract as per the law because the procurement process was tampered with. Yet in the labour court case against Tshitangano, the exact same department is attempting to argue that the former manager is lying and the tender bid process was fine. The reports of the Public Protector, the auditor general and of course the courts are still to be publicised, but it is an extraordinary and audacious move that the department is attempting to pull.
However, the failure goes beyond the department, Tshitangano said in an interview with Daily Maverick. "The whole system was failing me. You'd that think that if I have a dispute with an HOD over a contract, and I reported the matter to the MEC, he would investigate. After that comes the premier - he failed to appoint an independent auditor to look into my complaint," he said.
Tshitangano said that he received one letter of acknowledgement from the department of basic education at national level, and so "when the minister came to Limpopo, she was aware of the problem". He even contacted the presidency by writing to them via the presidential hotline, but received no joy there.
"If you listen to all the speeches that the politicians give about fighting corruption, I thought that they would jump into this," Tshitangano said.
Tshitangano is demanding a full reinstatement and compensation for the distress caused to him. He does not believe that the Limpopo government will rehire him at all. He said that on 26 March 2012, he spoke to the administrator Anis Karodia, appointed by Motshekga to oversee a turnaround of the mess that is the Limpopo education department, who assured him that he was convincing the MEC and current HOD that they had no defence against Tshitangano and ought not to contest the case. "I was later told that the new HOD does not want me back, and the MEC is not happy with a decision to reinstate me," he said.
Tshitangano also controversially believes that Karodia was shipped out of Limpopo for his refusal to direct work to EduSolutions. A report by Karodia to the finance minister Pravin Gordhan was leaked to the press this week. In it, the administrator calls for the tender bid process to be tightly controlled from the finance ministry in Pretoria.
"It is my contention that all tenders above R1m must be controlled by the National Treasury and... adjudicated by them, with a few Department of Education officials from Limpopo sitting in the bid process. This will eliminate interference," the Karodia report says, according to IOL News.
Karodia is in a controversy of his own with Motshekga - the minister initially claimed that she sacked him for poor performance, but the retired administrator has launched a blistering attack on her, saying that he was redeployed from Limpopo.
The Mail & Guardian has also uncovered what it believes are dubious links between an EduSolutions director and the senior manager of supply chain management in the department, Peter Letsoalo.
Tshitangano told Daily Maverick that he believed the tentacles of EduSolutions extended deep into the Limpopo department. However, he is most disappointed by the failure of the Public Protector and the auditor general to act quickly enough to save him. "These are chapter nine institutions with powers. But if they can be blocked because an official in the department of education refuses to hand over documents for five months, then it will be impossible to fight corruption," he said.