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November 01
Let’s celebrate our great transport strides

WITHOUT any fear of contradiction, I am of the conviction that eThekwini Municipality closed Transport Month with a bang. This follows the launch of the first direct flight from London to Durban and the official opening of the award winning Mt Edgecombe Interchange. We should pat ourselves on the back because our hard work has paid handsome dividends. With these milestones, our City will continue to be a force to be reckoned with, not only in the country, but in the world.

It has been a difficult five years driving on the N2 whether going to the airport or up north because of traffic congestion that was caused largely by construction of the interchange. Some of us use to reserve an hour for a 30 minutes trip to the airport when coming from the inner city during peak hours. It was not good news at all for among others the freight industry that unceasingly endured delays because of traffic congestion. Well, the truth is, it was worthwhile because from now onwards, there is going to be an incredible smooth flow of traffic.

There are many reasons that resulted to this massive construction. Two of them being the unprecedented expansion of Umhlanga and LA Lucia Ridge and the anticipated increase in the volume of traffic as a result of the Cornubia development. There are huge economic spin offs underway taking into cognisance that the N2 links among others the Durban Port and the Richards
Bay Industrial Development Zone. This is a clear indication that it is of cardinal importance for any country to develop infrastructure in order to stimulate economic growth.

Big business is definitely going to save a lot of money, which should be invested into the economy to create job opportunities our people so desperately need. I would like to thank SANRAL, national and provincial Departments of Transport, officials of our municipality and unsung heroes, the ordinary workers that have been working there. The interchange is one of the biggest ever built in the country, and has definitely changed the landscape of eThekwini.

Before the opening of the interchange, we welcomed the first direct aircraft from Heathrow Airport in London to King Shaka. British Airways will begin flying directly into Durban three times weekly. This is going to boost business and leisure.

Despite these good news, it would be amiss of me not to express my gratitude to two councillors that are no longer with us whom we laid to rest recently. They are Councillor Sibusiso Maphumulo Councillor Nkosiphendule Dlamini. May God be with their families in this time of grief and we wish their souls to rest in peace.


 on 11/5/2018 7:51 AM

It was not good

It was not good news at all for among others the freight industry that unceasingly endured delays because of traffic congestion.
 on 11/6/2018 6:50 AM

Cow Nose Ring

 on 11/6/2018 8:07 AM

Re: Let’s celebrate our great transport strides

The new Umhlanga interchange is a breath-taking grandeur. The workmanship is tremendous. At the pace at which the infrastructural development is moving, if uninterrupted, would make South Africa a first world country in the near future.

But the interruption is likely to occur. A significant chunk of our GDP comes from the mining sector. When the day arrives for the minerals to be depleted our GDP will inevitably shrink or shrivel instantly. Diversification of the economy to escape significant reliance on the mining sector is the way to go but looking at the shenanigans happening in the country this is unlikely to happen. The WMC factor complicates the situation.

Some folks argue to say if the white rule had continued post 1994 coupled with the end of apartheid we would by now have reached the milestone that would make us a first world country. These folks perceive the dawn of democracy and the replacement of white rule with a democratic rule as an interruption. The argument is that the predecessor to democracy had already gained massive experience in public administration and the successor had no experience therein and had started from a zero base. The public administration between 1994 and now has therefore been characterised by trial and error which has cost the economy tremendously, and it is going to take some time before the democratic government can learn the ropes of how to professionalise the public administration, so the argument continues.

Of course others would argue diametrically to say that the foregoing perspective is unacceptable as it seems to perpetuate white supremacy. The end of white rule was necessary for the achievement of liberation. Yes this argument is partly correct, because total emancipation has not been achieved for the previously disenfranchised, hence the emergence of political parties such as EFF and BLF which are continuing from where Nelson Mandela left it off.  For example, Malema is today regarded as the leader of the revolutionary struggle for total economic emancipation in South Africa.

However it is my view as a public representative of Umlazi Institute for the Advancement of Constitutional Democracy (UICD) that the revolutionary struggle for economic emancipation in South Africa should be waged within the template of the National Democratic Revolution (NDR). Some scholars and minorities are averse to the NDR because they hold the view that it is a violent mechanism intended to achieve deprivation of their property and displacement. We submit that this perspective is incorrect and should not be countenanced but discouraged. The NDR is based on democratic principles which our Constitution entrenches. Our Constitution is one that embraces the principle of constitutionalism and implicit in this principle is the rule of law. Inherent in the rule of law is the independence and impartiality of the judiciary. Given the entrenchment of the Bill of Rights and the embracement of the principle of Constitutionalism in the Constitution the courts are placed in a strong position to protect the rights of minorities and those who cannot protect themselves through the democratic system. With the NDR there is therefore not vile that is intended but the democratic transformation of society in the context of redressing the imbalances of the past.

The government of South Africa must be congratulated for pulling-off such a construction of grandeur as Umhlanga Interchange; hopefully the interchange will succeed in easing out traffic congestion in that area. UICD would also like to implore government to find better ways to diversify the economy so that sources of revenue for the state are not depleted and the state is able to continue to build more infrastructure similar to the Umhlanga Interchange. We also urge the Ramaphosa government within the limited time-frame to find better ways to urgently professionalise the public administration with the object of achieving the South African dream, the equivalent of the American dream; failing which South Africa will continue to suffer given the existence of the WMC factor which shows contempt for human dignity.

Rest in peace to all those who have recently passed away.

Makamisa Majola
Umlazi Institute for the Advancement of Constitutional Democracy (UICD)
All Durban townships represented (Umlazi, KwaMakhutha, KwaMashu, Ntuzuma, Inanda, Chesterville and Lamontville)
 on 11/6/2018 8:52 AM

Re: Let’s celebrate our great transport strides

There is a lot that is happening in the country. CR and PG are seen as being on a crusade to cleaning the government of the rot while on the other hand the judiciary appears to be at a crossroad. What places the judiciary at the crossroad is the issue of Gigabyte in his capacity as a minister concerning the VIP terminal matter at the airport. Please note that I do not have the full facts of the matter, hence my views below are based on the limited information at my disposal. As I get more information my view might change. Anyone is welcome to provide corrections. Azishe ke.

There is an allegation that the minister has lied under oath. This means that he has committed a crime called perjury. Both at common law and statute, this is a serious offence which is punishable by the law.

Complainant’s version
The complainant and the minister reportedly had a meeting wherein the matter of granting the complainant permission to operate a VIP terminal at an airport was discussed. In the meeting the minister, according to the complainant, verbally granted the complainant approval to operate the terminal. However, the minister later backtracked or reneged from the decision/promise.

Court proceedings
The matter went to court in which the complainant successfully argued that Gigabyte did indeed grant permission to the complainant, while Gigabyte on the other hand denied that he had granted the permission. The court then made a finding that the minister lied under oath when he denied to have granted permission.

Gigabyte has unsuccessfully attempted to appeal the High Court (HC) judgment both to the SCA and CC and his applications were dismissed by both courts without affording him an opportunity to be heard. The basis for rejection was that the chances of success of his application were slim. The source of evidence the HC apparently relied on was the record of minutes captured by the complainant.

Gigabyte’s version
He says he did not grant the permission. The only thing he did was to show appreciation for the idea but this was not an official approval of the idea. He also argues that it is outside his powers to personally grant permission to an idea of this nature as such an idea would have to go through a government procurement process.

The object of any court of law is the establishment of the truth in any matter before it except in certain matters relating to Family law. The version that must be accepted in a civil case is the one that is closer to the rule on the preponderance of probabilities. The truth is theory or principle/rule. Any version that is closer to the rule is the one that must be given more weight than the other.

Government procurement is regulated by the Preferential Procurement Policy Framework Act (PPPFA) and to a certain extent by the Public Finance Management Act (PFMA) which are original legislations together with subordinate legislations in the form of regulations. The supply chain management policy of a department also play a role in the procurement processes. The aforesaid legal prescripts prescribe the manner in which the government procurement is to be conducted. Significant procurements will involve various committees including evaluation and adjudication committees. For novel ideas such as the VIP terminal matter a feasibility study would have to be carried out to justify the need to procure.

There many entities that would be interested in running a VIP terminal, and the department would have had to incur costs with regard to the decision to appoint an operator, and therefore the appointment of an operator to run the VIP terminal appears to fall within the ambit of government regulatory procurement framework. This means that the appointment of the operator would have required the department to invoke the procurement process which would probably have involved the conducting of the feasibility study to justify the need. Once the need has been established, interested parties would be invited through the tender process to bid.

Clearly looking at the rules regarding government procurement, the minister did not have the authority to grant approval to the complainant. Even if the approval was indeed granted by the minister it would be invalid and the court would have probably chastised the minister for that and set it aside. The minister could also have incurred criminal liability in this regard. The minister’s version of the story that he did not grant approval as he did not have authority is closer to the rule; whereas the version of the complainant is far from the rule as it amounts to the violation of the law. The complainant is demanding the permission to operate the terminal in violation of the government procurement framework. I submit as a public representative of Umlazi Institute for the Advancement of Constitutional Democracy (UICD) that a version of a story that promotes compliance with the rule of law is in the interest of justice to be heard.

The questions that arise are: why have the SCA and CC refused to grant the application of appeal against the HC judgment, when it is in the interest of justice to hear the matter?, why have the courts given more weight to a version that is remote to the rule rather than the one that is closer to the rule? Why promote a version of an event that is proscribed by law? The failure by the appeal courts to hear the matter amounts, in our view, to the violation of the basic tenets of law i.e. one of the principles of natural justice - audi alteram partem rule.

Failure to grant Gigabyte the opportunity to state his side of the story has the effect of scandalising the judicial system as Gigabyte continues to represent to the whole world that he was not given the opportunity to be heard given the view that his version is the reaffirmation of the law.

The judiciary must be careful not to be influenced by the media narrative and politicians. The courts must not allow themselves to be used as instruments in political battles; neither must they allow government functionaries to abuse their positions for political ends, and the perception thereof must also not be allowed to thrive. Those who want to oust Gigabyte from the political arena must do so within the rules of the political game as they tussle with each other. On the basis, that the matter is of public interest, of significance and in the interest of justice I hereby implore the CC to revisit its decision to deny Gigabyte an appeal so that a proper court ruling can be made after weighing both the versions of the story. On the other hand the complainant cannot be allowed to operate the VIP terminal based on an unlawful decision.

Makamisa Majola
Umlazi Institute for the Advancement of Constitutional Democracy
Umlazi, Section ?
 on 11/6/2018 12:02 PM

Go green for our future

Congratuations, thanks for the great effort to the revolution, you all did a great job to this world, thanks.
 on 11/6/2018 2:02 PM

Re: Let’s celebrate our great transport strides

As I indicated in my previous post that I had limited information on the VIP terminal matter and my views would change as I get more information on the matter. This has indeed actually transpired, and as a result my views have slightly changed but still the information remains incomplete, and I again urge all those who are privy to the matter to come here and share their own perspective in order to set the record straight -  let a hundred flowers blossom, and a hundred schools of thought contend. I have tried to be as brief as possible and excluded legal authority just to keep the piece short.

Not coordinated at central point
The process of granting the permission to the complainant to operate the terminal required the involvement and approval from various departments of government. Each department had to grant approval and where applicable to provide resources to the terminal. What I have noticed to be a major flop from the government’s side is that the whole was not coordinated at a central point. There should have been at ad hoc committee that should have been established by government to handle the whole process and coordinate communication between the departments. The responsibility of communicating with the complainant should have rested solely with this ad hoc committee so that any miscommunication with the complainant could be avoided or minimised. Instead what seems to have happened is that each department communicated separately with the complainant and the complainant was engaging with each department to obtain approval; hence the delays and, misunderstandings cropped in. Because of dilly-dallying by the departments a legitimate expectation might have been created on the complainant. The principle of legitimate expectation gives rise to rights to a person where such person initially did not have in law. In this regard I feel sorry for the complainant.  However, there are certain set of facts that must be present for the doctrine of legitimate expectation to be effective as it will be explained below.

Difference between incurral of expense and reimbursement
My argument in my previous post was centred primarily on the government procurement framework to say the process of appointing the operator should have been subjected to the procurement process failing which the entire process was invalid. It has come to my attention that the premises to be used for the terminal belong to the complainant in terms of a lease agreement with a certain government entity. The complainant wanted his premises to be designated as an ad hoc point of entry and for the Gigabyte’s department to grant the approval as other departments have done so. Once all the approvals have been obtained the complainant would then operate the ad hoc point of entry (terminal). In substance it is my submission that this arrangement amounts to the appointment of the complainant as an operator and as such going forward I would refer to the appointment of an operator as a reference to the whole arrangement. The HC apparently argued that the appointment of the operator was not subject to a government procurement framework as the complainant was the ‘owner’ of the premises and would be carrying the costs for the arrangement.

Although the complainant had undertaken to carrying the costs that would be incurred by the departments a difference must be drawn between the incurral of costs and reimbursement. The incurral of costs and payment (reimbursement) are two separate processes. The undertaking by the complainant that it would carry the costs by the departments does not take away the legal obligation in respect of the departments to pay for those costs.

The department of home affairs would for example in the first instance be liable for the costs in respect of its staff members deployed to the terminal together with any ancillary costs to third parties. Then in the second instance the complainant would reimburse the departments for the costs (this can be structured in different forms). If the complainant for some reason were to renege from paying for the costs the respective departments would still be legally liable for those costs as the contract for reimbursement would not have involved third parties.

The undertaking by the complainant to carry the costs of the departments does not therefore diminish the legal obligation of the department in respect of the costs that would have had to be incurred. If this position stands then it follows that the process of appointing the operator should have been subjected to the government procurement framework. Despite the fact that the property is owned by the complainant in terms of the lease, the feasibility study should have been conducted to establish the need for the terminal and whether the complainant’s property is suitable to meet the established need or an alternative property should be sought. Because if there was no need for the terminal the departments would have been exposed to an unnecessary risk of incurring fruitless and wasteful expenditure which would have been, among other things, in transgression of the Public Finance Management Act (PFMA). If there was a central ad hoc committee established for this matter, then it should have been the one that should have carried out the feasibility study on behalf of the departments. The fact that the feasibility study was not carried out by all the affected departments there was, in my view as a public representative of Umlazi Institute for the Advancement of Constitutional Democracy (UICD), a violation of the legal prescripts in relation to the government procurement. If, to the contrary, the feasibility study was conducted by all affected departments and entities, then I am afraid, the complainant has a legitimate contract with government to operate the terminal on the basis of the doctrine of legitimate expectation.

Courts do not have the power to make an unlawful action lawful
Because there was noncompliance with the government procurement framework the decisions by the respective departments to grant approval and their undertaking to provide the required resources are unlawful. In other words their decisions would be an unlawful administrative action. The courts do not have the power to turn an unlawful action to a lawful one; by so doing the courts would be usurping the powers of the legislature. Remember that from a structural point of view the Constitution creates three branches of the state which gives rise to the doctrine of separation of powers. Let me not dwell on this point.

The complainant, on the other hand, may have a legitimate expectation because of pussyfooting by the various government departments.  Can the complainant then be deemed to have entered into a valid contract with all the relevant entities to operate the terminal?

It is our submission at UICD that a legitimate expectation can only originate from a lawful process. The process that was followed by the various departments appears to be unlawful with a knock-on effect of unlawfulness on their resultant administrative action.

If for example I am awarded a contract by your municipality after a rigorous tender process and then later on the municipality arbitrarily withdraws the contract, I may have a legitimate expectation as the process was lawful. But if we meet behind closed doors and we reach an agreement that you would rig a tender in my favour and you later renege from doing so I cannot claim to have a legitimate expectation because the process that would have unfolded would have been unlawful.

The principle out of the foregoing analogy which is applicable to the VIP terminal matter is that an unlawful process cannot give rise to a legitimate expectation. Over and above the violation of the government procurement prescripts, section 195 of the Constitution appears to have also been violated. Had the CC heard the matter they may have had to apply the doctrine of constitutional invalidity. Even if the contract is found to be invalid, the CC could still have allowed the complainant to operate the terminal for a limited period in terms of constitutional remedies provided the need for the terminal has been substantiated!

In light of the above it would have been in the interest of justice, in our view, for the courts to hear the Gigabyte’s appeal as his version purport to mimic what is stated in law in contradistinction to the complainant’s version. Please note I am not implying that the courts should have ruled in favour of Gigabyte but am just saying the appeal should have been heard.

I was just experimenting and sharing another perspective of how the matter could have been decided, I may be wrong; however, we are enjoined by the Constitution to respect the judicial process. We should be wary of criticising judicial decisions as this may tarnish the image of the judicial system. Because we are living in a democratic state we are allowed to a certain extent to criticise judicial decisions but such to ideally be supported by legal reasoning, just to show that it is not personal.

The entire judicial process has been exhausted in regard to this matter, so as citizens of the Republic we have to respect the decision of the courts as the final arbiters for the judicial authority is vested in the courts in terms s 165 of the Constitution.

Makamisa Majola
Junior legal adviser @ UICD
 on 11/7/2018 12:05 PM

Re: Let’s celebrate our great transport strides

Ukubone mfokaMsibi uma kuxabana izigebengu kuba njani.

Ngikhumbula ngomunye unyaka kuxbana izigebengu, wathi uyasukuma lomunye kusofa, lomunye wavesane wakhipha impompo wadubula.Hhhaa, kwasuka uthuli lwezichwe!

Ama oleti athi "niyabonake sinjani isiphetho sobugebengu?" Indeed there is no honour in criminality.

oSiphiwe Mvuyane bafika emva kwendaba. Ngikhumbula ngelinye ilanga kuyobulawa iphoyisa. Ngaleya mnyaka amaphoyisa ayebulwa. Longikhohlwa ngifile lelaphoyisa.

Ngendlela isimo esasibheda ngayo kwafika ingoma eyayithi "halala ngothando, halala ngoxolo", kusimbakele!

Amakgata akakito eseshaye intwana. Omunye watshelwa kwathiwa lalelake mfana wami, uyabona njengoba usuyiphoyisa, ungabozwana nezigebengu, wangalalela. Indeed there is no honour in criminality.

Uyakhumbula kusashaywa iblomas ezitolo ezibomvu, log time ago before kufike oMax neYadi. Hamba mnyaka!

Rest in peace kubafowethu nodade asebasishiya, bangaleya mnyaka. Hamba minyaka.
 on 11/7/2018 4:04 PM


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 on 11/8/2018 7:03 AM

Re: Let’s celebrate our great transport strides

VIP terminal matter

Some people may probably be inquisitive as to whether the complainant may rely on the turquand rule to claim the right to operate the terminal. Turquand rule entitles an outsider transacting with a company to assume that internal requirements of the company for a transaction have been complied with and therefore the company is bound by the transaction even if the internal requirements were not complied with. The main requirement for the rule to apply is that the person acting on behalf of the company should have authority to represent the company on the transaction. The issue should be that the authorised person did not comply with all the internal requirements of the company to get the transaction finalised.

Ensuring compliance with legislative requirements by various departments in the VIP terminal matter are internal requirements of the government, one may argue, and therefore say the complainant was entitled to assume that internal requirements were met and the valid contract to operate the terminal after obtaining all the approvals has come into being. It is an interesting argument.

The problem that may prevent reliance on this rule is that the entities that the complainant was dealing with were not companies but organs of state. The internal requirements of organs of state are not necessarily internal but are of a public nature as those internal requirements are regulated by legislation. Secondly, the authority for the functionaries to perform their tasks is also interwoven with the legislative requirements. Authority does not arise if the legislative requirements are not satisfied. If for example as a CFO of eThekwini  municipality I decide to award olova baseMlazi a contract worth R80 million without following the supply chain management policy of the municipality which policy is derived from legislation, the contract would be invalid despite the fact that I have general authority to sign off on contracts. Opposition parties or any interested party would dash to court to seek a declaratory order of invalidity in respect of the contract.

In the context of the government procurement framework, the turquand rule can thus not be applicable to the VIP terminal matter, of course in our view as UICD, a non-profit organisation interested in the advancement of constitutional democracy in South Africa which is resident at Umlazi. The complainant in the VIP terminal matter may thus not be able to rely on the turquand rule.

I could be wrong mfokaMsibi as I am not a qualified lawyer but ulova wase lokishini, ngisayobhema iw**nga.

Makamisa Majola
 on 11/8/2018 9:52 AM
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