Mr Malatji was not in possession of a certain bundle of documents at the time he was giving testimony, which were referenced during his evidence but only received later after requests and confirmation of access to workplace.
“Mr Malatji, our client, was constantly referred to some certain bundle of documents, which we were not in possession of at the time when we were assisting him at that time... I requested the Commission to furnish the documents which I am talking about, and which we were not in possession of... he was not in possession... he obtained whatever documents that he could... he was only referred to those documents and ended there.”
Mr Malatji was on suspension and undergoing a disciplinary process at his workplace which hindered his access to required documents.
“he is on suspension and he is currently undergoing a disciplinary process there... when Mr Malatji is in management... he had some predicaments, especially... he was not getting the documents that he needed from his workplace... he obtained whatever documents that he could”
Mr Malatji did not seek assistance from the evidence leaders despite it being usual to do so for witnesses needing documents, especially those on suspension.
Mr Malatji was able to get some documents through liaising with the people he worked with, though not all documents were obtained by the end of the week of the 14th.
“It is not that he was getting zero. He was getting documents, and he was indicating to me...when the week of the 14th came to an end...we have to recollect the information and see how far we are.”
There was an internal disciplinary hearing scheduled for Friday the 24th involving Mr Malatji, which required the City to request an indulgence to accommodate Commission activities.
“we were preparing for an internal disciplinary hearing, which was scheduled for Friday...Mr Spies...requested us in the internal disciplinary process through the representative of the City for an indulgence to postpone the disciplinary hearing in order to accommodate the proceedings of this Commission”
Mr Malatji was actively trying to meet deadlines and was not keeping quiet or inactive despite being busy.
“Mr Malatji has been very active, showing us that he wants to meet whatever deadline. He did not want to be caught napping. It is not that he was keeping quiet. Yes, I was a busy man, but I was, you know, helping in as much as I can.”
Mr Malatji made a substantive request by email to postpone the internal disciplinary hearing scheduled for Friday the 24th but was rejected, leading to frustration due to lack of time to prepare.
“I made a substantive request through an email after having made a telephone call, negotiated. On Tuesday, I requested that postponement. It is rejected. I do not have an option after consult, because I am getting frustrated. We do not have time.”
The internal disciplinary hearing for Mr Malatji was adjourned to May 2nd after the Commission granted some time over the long weekend to prepare a supplementary statement.
“it was adjourned to May...I am sure you are all aware, it is a long weekend, but we still gave some time, one or two days during the long weekend, to prepare for the supplementary statement...I think it is the 2nd”
A 418-page tender document, tender TMPD 2-015/2016, which is central to Mr Malatji's testimony, was only received by Mr Nkosi and team the day before.
“there is a document which we received only yesterday. It is appearing on the bundle that we received from the Commissioner. It is a 418-paged document, which Mr Malatji ... It is the tender documents, tender TMPD 2-015/2016, the main document in which the crux of the testimony of Mr Malatji was based”
The statement submitted on Monday was not satisfactory to Mr Malatji and team, but was submitted under extreme pressure and out of respect for the Commission's directive.
“the statement which was submitted on Monday, it was not to our satisfaction, and even for the satisfaction of Mr Malatji. We were under extreme pressure ... but he just insisted ... to respect and comply with the directive of the Commission”
Mr Malatji and his counsel are currently not prepared and humbly request reasonable time to submit a well-informed and fully prepared statement to benefit the Commission.
“we are just asking a reasonable time ... we are humbly requesting to be afforded an opportunity ... we will come back with reasonable time ... we are going to try our utmost best to make it a point that we come back ready”
Mr Malatji appeared last for questioning and his appearance is not a new one; the issue of the bundle given to him on 28th (Tuesday) relates to his last testimony.
“Mr Malatji appeared last ... it was on pointed questions ... the issue of the bundle that was given to him, it was given on the 28th, which was the Tuesday, the bundle that was used in his last testimony”
Additional documents communicated yesterday with Mr Nkosi's attorneys include supplemental transcripts mainly relating to the testimony of Mr Malatji, Mr Phiri, and Mr Mnisi.
“the additional documents ... it was essentially the supplement, the additional transcripts, and those additional transcripts are in the majority his testimony”
There is a dispute about the instructions given by Mr Malatji regarding tender TMPD3, which is related to the probity report and court order involving the appointment of two contractors.
“there is some dispute about, about having been given to Mr Malatji ... it is just the issue of Mr Malatji's presence in a BEC meeting ... it was just on his view about the cancellation of that tender... the probity report that was, that in relation to tender 3, TMPD3 ... the appointment of the 2 contractors by a court”
Mr Malatji has testified on various documents including tender documents, declarations, correspondence dated 12 March, termination of ad hoc, and a letter by Commissioner Spies.
“Mr Malatji has testified on ... the tender documents, the declarations ... the correspondence of 12 March ... the termination of ad hoc ... the letter by Mr Spies, by Commissioner Spies”
Adv Sikhakhane intends to rely on one page of the probity report served at 11:52 PM last night, which relates to the sitting of Mr Malatji and his submission or lack of submission of his scoresheets in a tender process.
“the one document that is crucial is the probity report, which is, essentially, even there, I am relying on a page of it.”
Mr Nkosi states there is a quite voluminous bundle submitted by Phiri that discusses his working relationship with Malatji.
“It has been a common point that Mr Phiri has been working with Mr Malatji quite a number of times . That is quite voluminous bundle that are talking about that information”
There was an outstanding payment issue explained to the entities, who did not find joy going to Malatji for resolution, and were advised to come directly to Deputy Chief Dhlamini if they experienced challenges in the future, but they insisted on resolving it through Malatji or the CFO.
“There were two aspects, Commissioner. The outstanding payment I explained to them, and they did not find joy going to Malatji... They will address it with Malatji or if they feel the CFO will deal with it, they will have to go back to him.”
Evidence before the Commission includes letters sent that Major Phiri can only partially account for, with a deficit of about 50% of the letters unaccounted for even if authority was from Herman or Malatji.
“at least for now, there is no account. Even if we were to accept that he had authority from either Herman or Malatji, there is still a deficit of at least 50 percent of the letters that he can account for”
Deputy Chief Spies gave an instruction on 12 March to terminate an adhoc appointment and later wrote a letter terminating the services when Mr Malatji stalled.
“Deputy Spies has given evidence before this Commission. He says on the 12th of March, he gave an instruction to Mr Malatji to terminate this adhoc appointment the following morning, the 13th of March. Mr Malatji did not comply with that instruction... when Deputy Spies realised that Mr Malatji was stalling with these terminations ... he then wrote the letter terminating these services.”
Malatji asserts that during his participation in the tender TMPD 2 (2016-2017) as a BEC member, there was no complaint or indication that documents were tampered with.
“I can assure the Commissioner and this Commission, that from the beginning to the end, we never had a situation where there was a complaint to the effect that documents were tampered with, and so forth and so on.”
Malatji confirms his knowledge is limited to his period of participation as a BEC member and not after.
“So, your focus is only at the stage of your participation as a member of the BEC. Yes. So, what you are telling us relates to that stage only. Exactly. So, you would not know what happened later, and you would not know whether issues were raised about missing documents.”
Malatji was not aware that documents were removed from municipality offices to a college for evaluation purposes.
“Are you saying you never became aware that there were irregularities or allegations that documents were removed from municipal offices to a college where evaluation was done? No. I wanted to assure... Those reasons were purely on security issues that, as the BEC have observed, right, before we could start with the actual evaluation process... The storage facility was accessed without control by city officials, right, and that concerned the BEC.”
The complaint concerns that Mr Malatji was busy allocating operational responsibilities to service providers without informing his management, which impacts daily operations, budget allocations, and contract management.
“The issue would be that he is busy allocating operational responsibilities to service providers that might or will have a serious impact on your daily operations, your budget allocations, and contract management. And the fact that he does not inform his management of his actions, which is expected of him to do”
Allocating such operational sites is within Mr Malatji's powers but it is improper for him to do so in isolation and without consulting or reporting to top management.
“I believe it is in his powers to allocate such sites, but I do not believe it is proper for him to do it in isolation from the department and as his direct supervisor... it would have been his duty to at least consult and report it to top management.”
Even if the allocations were made within budget and fairly distributed among service providers, there is still an issue if Mr Malatji did not inform or seek approval from management.
“If there had been a fair distribution and all of that was done within budget, the Watchman Services budget, you would not have an issue that he made those allocations. Would you have an issue if he made those allocations and did not inform you or seek your approval even?”
If it was an innocent mistake by Mr Malatji, it should be rectified and a management principle put in place; if deliberate and provable, disciplinary steps should be taken against him.
“If it was an innocent mistake, rectify it, put a management principle in place. If it was done deliberately and it can be proven, I would take up disciplinary steps against him as the manager...”
Commissioner Bolhuis acknowledges that sites were added in January and February without his knowledge and that he did not confront those responsible such as Malatji or his subordinates.
“in March know that sites have been added and people who added them did not have authority and they did not consult you, but you do not seem to have taken that up with either Malatji or any of the people below him... no, I have not”
The report on challenges in the investigation was concluded by Internal Affairs and sent on 29 and 30 July, but a key witness, Inspector Phiri, was unable to be interviewed or provide a statement before finalization.
“this report was concluded on the email that was already sent on the 29th of July...sent to the Deputy Chief Dhlamini for his office...Unable to interview Malatji if he is suspended and suspended but unable to interview and obtain a statement from Inspector Phiri”