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Taxpayers face R200m bill for Zuma aircraft bungle

Date: 19 May 2018

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A bungle by Department of Defence head honchos in leasing planes for the president and his deputy is set to cost taxpayers more than R200-million.

Seven years ago‚ the department went shopping for two aircraft for “very‚ very important persons” – then-president Jacob Zuma and his deputy Kgalema Motlanthe.

But the secretary for defence‚ Sam Gulube‚ and his predecessor‚ Mpumi Mpofu‚ failed to sign the five-year lease agreement‚ worth nearly R827-million‚ with successful bidder Adonai Aviation. This was despite having given the company an “acceptance letter”.

Instead‚ the department started “scouting around for the acquisition or lease of other aircraft”.

Now the High Court in Pretoria has ruled that Defence Minister Nosiviwe Mapisa-Nqakula must pay the company more than R200-million in damages and slapped her with a punitive costs order. In his judgment‚ Judge Norman Davis said he was appalled by the department’s conduct.

Mpofu and former air force chief Lieutenant-General Carlo Gagiano resigned in 2011 amid claims that mercenary pilots had been hired to fly VIPs.

The department was left red-faced in the same year when Motlanthe had to board a commercial flight to Scandinavia after a chartered aircraft was grounded by technical problems.

Lindiwe Sisulu‚ then minister of defence‚ was reportedly enraged when she discovered Zuma had been flown to New York by pilots who had been jailed for taking part in a failed 2004 coup attempt in the Equatorial Guinea.

Technical problems that grounded the presidential aircraft‚ Inkwazi‚ were also a headache for the department.

Davis said Adonai scored highest in evaluation of eight tenders and received an acceptance letter‚ but the department refused to sign the detailed agreement subsequently negotiated.

“Sometime hereafter it became known to that the [department] was scouting around for the acquisition or lease of other aircraft‚” said Davis.

“Fearing the issuing of a new tender or the initiation of a new bid process‚ [Adonai] launched an urgent application against … [the minister].

“The recalcitrant refusal to sign the agreements in the circumstances of this case amount to a deliberate thwarting of the suspensive conditions to the effect that they should be deemed to have been fulfilled.”

The department argued that the lease with Adonai never came into existence because the company failed to provide aircraft for it “to inspect for acceptability”. The department accused Adonai of misrepresentation by claiming it owned aircraft.

“The [company] knew that the representation was false in that it was not the owner or in control of the aircraft at all relevant times hereto‚” Mapisa-Nqakula said in court papers.

“As a consequence of the [company’s] lack of ownership and control‚ the jurisdictional facts necessary for the fulfilment of the conditions could not be met.”

But the company said it had paid a $2.5-million deposit for the aircraft about three months after its bid was accepted. It said the department had “taken every step possible to avoid the consequences of having awarded the bid” to it.

Adonai said these included:

• Going out to tender on two occasions for the same contract it had been awarded;

• Refusing to negotiate with the company after the conclusion of the lease agreement;

• Dishonestly relying on defences which it knew had no legal basis; and

• Changing its defence during the trial.

Davis said Gulube‚ who was appointed shortly after Mpofu’s resignation in November 2011‚ claimed the agreement contained “unsettling features” but failed to list them in his affidavit.

“This general non-responsiveness is in similar vein to the lack of answers to the numerous letters form [Adonai] and its lawyers‚” he said. “I am not convinced that Dr Gulube had read all the documents which came into existence preceding his appointment as he had stated in his answering affidavit that he had done.

“If he had read them‚ then it is to be questioned on what basis‚ in the light of their contents delineating all the previous scrutiny by various officers and employees of the department‚ he sought to ‘reinvent’ the proverbial wheel and recommence a procurement integrity process on vague and unsubstantiated grounds.”

Leslie Cohen‚ lawyer for the Adonai Aviation‚ declined to comment. “I spoke to my client‚ they are not prepared to speak about financial loss‚” he said.

Mapisa-Nqakula’s spokesman‚ Siphiwe Dlamini‚ said: “We are studying the judgment and there is no decision as yet on what is what is our next move.”



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