SIU fails to stop payout to former Lepelle Northern Water acting CEO

The Special Tribunal on Thursday dismissed an application by the Special Investigating Unit which sought to prevent the release of pension benefits to Ahuiwi Netshidaulu, the former acting CEO of Lepelle Northern Water. 

The SIU brought the application on an urgent basis this year after Netshidaulu’s employment was terminated in December last year and he became entitled to withdraw his pension and retirement benefits. 

The SIU wants to sue Netshidaulu for damages for his alleged participation in a procurement process that led to a tender being unlawfully awarded to Blackhead Consulting.

Netshidaulu was Lepelle’s general manager for operations and maintenance in 2015 when he supported a request by Lepelle’s programme manager, Ndivhuho Mulibana, to deviate from normal tender processes for the appointment of engineering services consultants for a project aimed at raising the Tzaneen Dam's wall.

During February this year, the SIU was informed by Lepelle that Netshidaulu completed his pension benefits withdrawal form. Lepelle informed the SIU it could stay the payment of his pension withdrawal only when ordered to do so by the tribunal. 

Netshidaulu contended that the SIU’s explanation for urgency was insufficient. He said on May 21 2021, the SIU set a target for itself that it would institute an action for damages against him by November 2021. 

“More than two years later, it has still not done so simply because there is no basis for the SIU’s allegations against Netshidaulu,” tribunal president judge Lebohang Modiba said when explaining Netshidaulu’s complaint. 

The SIU contended the proverbial clock to launch its application started ticking in February this year when it became aware that Netshidaulu had started withdrawing his pension benefits.

“I don’t accept this. Netshidaulu’s employment was terminated in December 2023. The SIU knew as far back as 2021 that it intended instituting a damages claim against him. It ought to have acted with haste after Netshidaulu’s employment was terminated in December 2023 to bring the present application,” she said. 

Modiba said there were serious shortcomings in the SIU’s alleged cause of action against Netshidaulu. She said the SIU had not set out a proper course of action for the alleged damages it sought to recover from Netshidaulu. 

According to Netshidaulu, there was nothing irregular about the procurement process proposed by Mulibana, which he supported because it was consistent with Lepelle’s supply chain management policy. 

“Unless the SIU alleges a nexus between Netshidaulu’s alleged role in the tender process and the damages allegedly suffered, there is no basis on which he may be found liable for any damages suffered because of the irregular tender process,” Modiba said.

She said the SIU did not dispute Netshidaulu’s contention that supporting a memorandum prepared by Mulibana seeking approval to use the department of water & sanitation’s panel of service providers was not irregular in terms of Treasury Regulation 16.A6.6.

“Therefore, at the intended trial there are no prospects that the SIU will succeed in establishing that it was irregular for Netshidaulu to support a request to use the DWS panel of service providers for the procurement of service providers for the Tzaneen Dam project in terms of Treasury Regulation 16A6.6..” 

Modiba said what weakened the SIU’s case further was that Netshidaulu was charged for his role in the procurement based on the same allegations the SIU had made against him in this application. Netshidaulu was acquitted of the relevant charge in his workplace.

Modiba slapped the SIU with a punitive costs order. This was because the application was frivolous and lacked any prospect of success, having been brought on allegations in respect of which Netshidaulu was acquitted at a disciplinary hearing.

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