Proclamation No. R. 20
14 May 2021
GG 44572
PROCLAMATION NO. R. 20 OF 2021
by the
PRESIDENT of the REPUBLIC of SOUTH AFRICA
Department of Justice and Constitutional Development
WHEREAS allegations as contemplated in section 2(2) of the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996) (hereinafter referred to as "the Act"), have been made in respect of the affairs of the East London Industrial Development Zone, situated in the Eastern Cape Province (hereinafter referred to as "the ELIDZ");
AND WHEREAS the ELIDZ or the State may have suffered losses that may be recovered;
AND WHEREAS I deem it necessary that the said allegations should be investigated and civil proceedings emanating from such investigation should be adjudicated upon;
NOW, THEREFORE, I hereby, under section 2(1) of the Act, refer the matters mentioned in the Schedule, in respect of the ELIDZ, for investigation to the Special Investigating Unit established by Proclamation No. R. 118 of 31 July 2001 and determine that, for the purposes of the investigation of the matters, the terms of reference of the Special Investigating Unit are to investigate as contemplated in the Act, any alleged—
| (a) | serious maladministration in connection with the affairs of the ELIDZ; |
| (b) | improper or unlawful conduct by officials or employees of the ELIDZ; |
| (c) | unlawful appropriation or expenditure of public money or property; |
| (d) | unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon State property; |
| (e) | intentional or negligent loss of public money or damage to public property; |
| (f) | offence referred to in Parts 1 to 4, or section 17, 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), and which offences were committed in connection with the affairs of the ELIDZ; or |
| (g) | unlawful or improper conduct by any person, which has caused or may cause serious harm to the interests of the public or any category thereof, |
which took place between 1 January 2011 and the date of publication of this Proclamation or which took place prior to 1 January 2011 or after the date of publication of this Proclamation, but is relevant to, connected with, incidental or ancillary to the matters mentioned in the Schedule or involve the same persons, entities or contracts investigated under authority of this Proclamation, and to exercise or perform all the functions and powers assigned to or conferred upon the said Special Investigating Unit by the Act, including the recovery of any losses suffered by the ELIDZ or the State, in relation to the said matters in the Schedule.
Given under my Hand and the Seal of the Republic of South Africa at Johannesburg this 22nd day of April Two thousand and twenty-one.
CM Ramaphosa
President
By Order of the President-in-Cabinet:
RO Lamola
Minister of the Cabinet
SCHEDULE
| 1. | Irregularities, malpractices or maladministration in the affairs the ELIDZ in relation to the— |
| (a) | management of the Infrastructure Maintenance and Renewals Fund (“IMRF”) and the appropriation of the funds of the IMRF; |
| (b) | management or appropriation of funds received from the Department of Trade and Industry; |
| (c) | appropriation of funds earmarked for the IMRF for other purposes; |
| (d) | settlement that was paid to a former Chief Financial Officer of the ELIDZ; |
| (e) | keeping of proper financial records of all assets, liabilities, income, expenses and any other financial transactions related to the ELIDZ; |
| (f) | manipulation of the financial records of the ELIDZ relating to the— |
| (i) | capital appreciation of, or income generated by, investment property; |
| (ii) | expenditure, including fruitless and wasteful expenditure, incurred by the ELIDZ; or |
| (iii) | financial position of the ELIDZ; |
| (g) | approval of variation orders that exceed the allowable percentage of the original contract price in respect of the following contracts: |
| (i) | MST Projects in 2012 and 2013; and |
| (ii) | Social Housing Development Project for a future residential complex in Zone 1B of the ELIDZ between 2012 and 2015; |
| (h) | failure to recover the full amount that was due and owning in terms of a loan agreement entered into between the ELIDZ and a service provider and/or to account for amount that was loaned to, or recovered from, the service provider in question; |
| (i) | business transactions that were concluded by the ELIDZ and which were not viable or in the best interests of the ELIDZ; |
| (j) | mismanagement of the finances, assets or liabilities of the ELIDZ; |
| (k) | disposal of state land; |
| (l) | payment of excessive fees, salaries and bonuses to the ELIDZ Board and executive staff members, despite severe financial constraints in the 2013/2014 and 2014/2015 financial years; or |
| (m) | acquisition of immovable property, including— |
| (i) | the causes of such irregularities, malpractices or maladministration; and |
| (ii) | any related unauthorised, irregular or fruitless and wasteful expenditure incurred by the ELIDZ or the State as a result of such irregularities, malpractices or maladministration. |
| 2. | The procurement by ELIDZ of the Alexander Golf Course, three properties situated at Berlin, property at Fort Jackson and four properties at Bridger Farm and payments made in relation thereto— |
| (a) | in a manner that was— |
| (i) | not fair, competitive, transparent, equitable or cost-effective; or |
| (aa) | applicable legislation; |
| (bb) | applicable manuals, guidelines, practice notes, circulars or instructions issued by the National Treasury or the applicable Provincial Treasury; or |
| (cc) | manuals, guidelines, codes, policies, procedures, instructions or practices of, or applicable to the ELIDZ; or |
| (b) | which was conducted or facilitated by the unlawful, irregular or improper intervention of— |
| (i) | employees or officials of the ELIDZ; or |
| (ii) | any other person or entity, |
to corruptly or unduly benefit themselves or any other person or entity,
and any related unauthorised, irregular or fruitless and wasteful expenditure incurred by the ELIDZ or the State.
| 3. | The procurement of, or contracting for— |
| (a) | three 40MVA transformers for the Kemba Substation in terms of Actom Contract Z6/E1/TRF/03/11; |
| (b) | feasibility studies and tests in respect of a Biofuel site in the Berlin area; and |
| (c) | one 20MVA transformer for a Biofuel site in the Berlin area, |
by ELIDZ and payments made in relation thereto—
| (i) | in a manner that was— |
| (aa) | not fair, competitive, transparent, equitable or cost-effective; |
| (aaa) | applicable legislation; |
| (bbb) | applicable manuals, guidelines, practice notes, circulars or instructions issued by the National Treasury or the applicable Provincial Treasury; or |
| (ccc) | manuals, guidelines, codes, policies, procedures, instructions or practices of, or applicable to the ELIDZ; or |
| (ii) | which was conducted or facilitated by the unlawful, irregular or improper intervention of— |
| (aa) | employees or officials of the ELIDZ; or |
| (bb) | any other person or entity, |
to corruptly or unduly benefit themselves or any other person or entity,
and any related unauthorised, irregular or fruitless and wasteful expenditure incurred by the ELIDZ or the State.
| 4. | Any improper or unlawful conduct by— |
| (a) | officials or employees of the ELIDZ; or |
| (b) | any other person or entity, |
in relation to the allegations set out in paragraphs 1 to 3 of this Schedule.
