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ATC201014: Report of the Portfolio Committee on Public Works and Infrastructure on an Oversight Visit to Beitbridge, dated 7 October 2020

Public Works and Infrastructure

REPORT OF THE Portfolio Committee on Public WorksAND INFRASTRUCTURE on aN Oversight Visit to BEITBRIDGE, DATED 7 OCTOBER 2020

 

The Portfolio Committee on Public Works, having undertaken an oversight visit to the Beitbridge Border Post from 4 to 6September 2020, reports as follows:

 

ATTENDANCE

  1. Ms N Ntobongwana, MP (Leader of the Delegation)
  2. Ms L Mjobo, MP
  3. Ms L F Shabalala, MP
  4. Ms S R Van Schalkwyk, MP
  5. Mr E Mathebula, MP
  6. Mr T Mashele, MP
  7. Ms S Graham-Maré, MP
  8. Ms M Siwisa, MP
  9. Mr M Nxumalo, MP
  10. Mr W Thring, MP

 

  1. INTRODUCTION

The Portfolio Committee on Public Works and Infrastructure together with the Portfolio Committee on Home Affairs, and the Standing Committee on Public Accounts (SCOPA) conducted an oversight visit to Beitbridge Border Post, bordering South Africa and Zimbabwe,from 4 to 6 September 2020.

The objective of the visit was to gather first-hand knowledge of the Beitbridge Border Post Fence Project which comprises the 40 kilometre (km) fence constructed by the Department of Public Works and Infrastructure (DPWI) along the borderline between the two countries. The DPWI initiated the erection of the 40km borderline fence through a service provider, Magwa Construction as part of the government’s measures to mitigate the risk associated with the lockdown instituted to deal with the Coronavirus (COVID-19) pandemic.

The measures taken constituted the declaration of a National State of Disaster and subsequent National Lockdown Regulations. Prompted by this the Minister of Public Works and Infrastructure instructed that the DPWI erect a 20 km of the fence on either side of the Beitbridge Border Post to ensure that no person who possibly had been infected could enter or leave the country and cause further infections on either side of the border. The reason advanced by the DPWI to erect the 40 km fence was that the fence infrastructure around the border was not sufficiently secure and was vulnerable to persons trying to cross the border illegally.

Since then, several investigative reports, including from the National Treasury and the Special Investigating Unit (SIU) flagged irregularities in the procurement process and raised pertinent questions regarding the poor quality of material used, and construction work done. These queries included the manner in which the contractor, Magwa Construction and the Principal Agent, Profteamwere appointed as service providers.

In line with its oversight responsibilities, the three committees conducted an oversight visit to the Beitbridge Border Post on 5 September 2020 to inspect the 40 km fence constructed by Magwa Construction under the auspices of DPWI.

The Minister of Public Works and Infrastructure was invited to attend the oversight visit and deliberations, but there was neither an acknowledgement of the invitation nor an apology for her absence during the visit.

 

  1. MANDATES AND FUNCTIONS

 

  1. The Mandate of the DPWI - the relationship with the PMTE

The DPWI is mandated to be the custodian and portfolio manager of national government’s immovable assets.

Following the operationalisation of the Property Management Trading Entity (PMTE), the department’s role shifted to policy formulation, coordination, regulation and oversight relating to the provision of accommodation and expert built environment services to client departments at the national government level. The PMTE took over the actual planning, acquiring, managing and disposing of immovable assets in the department’s custody.

The DPWI is further mandated to coordinate, ensure national regulation, and provide strategic leadership in employmentcreation initiatives for indigent households through the expanded public works programme (EPWP) that are implemented by several national, provincial, and municipal government departments. Public works is constitutionally designated as a concurrent function exercised by both the national and provincial spheres of Government.

Additional to this, the infrastructure role was added at the start of the sixth administration in 2019, as guided by the Infrastructure Development Act of 2014, so that the role of the DPWI also include the coordination of infrastructure projects at all three levels of government.

 

  1. The Mandate of the Portfolio Committee on Public Works and Infrastructure

The committee conducts oversight over the Minister of Public Works as executive authority that provides policy leadership over the programmatic deliverables of the Department of Public Works and Infrastructure (DPWI) and its entities. Much of the committee’s oversight work focuses on how the Director-General leads the departmental administration to interpret the policy, turn it into programmed plans using the allocated budget to implement the policies made by as per the mandate of the DPWI. The Constitution (Schedule 4, Part A), and the Government Immovable Management Act (GIAMA, Act 19 of 2007), describes the mandate of the DPWI.

 

  1. SITE VISIT AND BRIEFINGS

 

  1. Pre-site visit briefing

Officials from the Department of Public Works and Infrastructure and the SIU Technical Team briefed the three committees on the technical aspects and findings related to the 40-kilometre Border Fence Project, constructed between the borders of South Africa and Zimbabwe. The overarching issues noted during the briefing included:

  • The provisional site clearance and project specifications were in question.
  • The findings indicated that what was constructed versus what was delivered did not correspond.
  • Several changes were made to the specifications, which did not correspond to the delivered project.

 

  1. Matters that emerged during the briefing highlighted the following:

 

  • The height of the fence is 1.8 metres instead of the specified 2.2 metres; concertina wire were stretched too far and did not meet the specification of 730-millimetre diameter concertina; and posts used at certain intervals proved to be unnecessary.
  • The evaluation of the project indicated cost omissions and found that the tendered amount was higher than what was delivered on site. This inflated the price by approximately R14 million.
  • The Presidential Infrastructure Coordinating Commission (PICC) independent analysis in terms of a fair price for work, on the quote of material on site, found that thecalculated price was less by at least R17 million.
  • The department’s Professional Quantity Surveyor/Town Planner Indicated that as early as January 2020 the department was looking at long-term solutions on how the borderline infrastructure needed to be maintained. The legislation and Land Use Management Framework, along the borderlines is the responsibility of the Town Planning Services Unit, which includes preplanning, disposal and leasing, as well as the issuing of site clearance certificates. Site clearance means that no project can be started before a feasibility and Environmental Impact Assessment (EIA) study is completed.
  • The existing borderline between South Africa and Zimbabwe is 700 kilometres. Reportedly, a site clearance certificate was issued for its maintenance. There was no evidence that a site clearance certificate was issued for the 40-kilometre border fence.
  • On 20 January 2020, the Minister of Public Works and Infrastructure chaired a meeting that was triggered by complaints of criminal activities and illegal crossings at the border, received from the Department of Defence and AgriSA[1]. The areas that were identified followed from engagements with stakeholders such as AgriSA.
  • On 10 March 2020, the site clearance certificate was issued for the 700-kmborderline, but not for the 40-kmfence. Transgressions of the National Environmental Management Act (No.107 of 1998) occurred. It is unclear whetherthe department undertook any Environmental Impact Assessment (EIA) and whether approval for the EIA was received from the Department of Environmental, Forestry and Fisheries (DEFF). An official of the department(DPWI) reported that the site clearance for the 700-kilometre border fence was illegally used for the 40-kilometre border fence.
  • The 700 kilometre fence was identified by the Department of Defence and farmers through a public participation process as being vulnerable and/or hotspot areas. The 100-kilometre fence comprised of gaps and areas that were no longer sound. The clearance certificate for the repairs and maintenance of the 100-kilometres was signed off on 10 March 2020.
  • According to the DPWI, the provisional site clearance for 10 March 2020 was issued for repair and maintenance of theborderline and thus should have never been used for the 40-kilometre borderfence.
  • In terms of the 40-km border fence project, the department’s Technical Team[2] initially suggested that instead of looking at only 40-kilometres, the project should be 100- kilometres. However, the Technical Team’s suggestion to extend the area was not considered.
  • The SIU reported on the practical completion of the site and the Bill of Quantities (BOQ) and stated that the Deputy Director-General (DDG): Construction decided on the 40-kilometres without any site evaluation. An amount of R21 million was paid to the contractor and R1.8 million to the PrincipalAgent. It was further reported that advanced payments were made upon receipt of first certificate for the above amounts, while a secondpayment was halted by the Department of Public Works and Infrastructure. The final account had therefore not been finalised at the time of the oversight visit.

The DPWI made the following inputs:

  • The department clarified that in terms of oversight and monitoring; sign-off managementexisted in the form of a Site Manager; and Principal Agent who received percentage of the contract value.
  • Mechanisms were in place, but human failure and non-compliance resulted in the overpayment of the contract and sub-par work on the border fence.
  • Criminal charges would be laid against the Contractor, Principal Agent and officials of the department who have been found guilty of any misconduct.
  • Misrepresentation of work done to date resulted in 60 per cent of the contract value being paid up front. The Project Manager had to be charged.
  • Disciplinary charges were brought against 14 personnel in the Department of Public Works and Infrastructure.
  • The appointment of the Principal Agent was found to be irregular.
  • The department reported that failures in the checks and balances to ensure compliance with the Public Finance Management Act (PFMA) and the department’s procurement regulations weredue to human failure. These should be rectified and in addition, the Acting DG reported that officials would be trained to understand that the implementation of emergency procurement proceduresdidnot mean that proper processes should be abandoned in favour of quick results.

 

  1. The site visit

The three committees were driven along the 40-kilometre border fence in military and four-wheel drive vehicles that could withstand the rough and uneven terrain. The committees undertook site inspections of the entire 40-kilometre stretch of the border fence, and pausedat three separate sections of the border fence as selected by the department’s Professional Team and the SIU’s investigators seconded to the department, as well as the technical team from the Presidential infrastructure Coordinating Commission (PICC).

The three sites included:

  • Beginning of the border fence.
  • Midway along the border fence on the side where private farms run along the side of the border.
  • Another stretch of the 20-kilometre border fence on the side where there were no farms situated.

 

  1. Beginning of the Border Fence

At site 1 of the border fence, the Director of Town Planning indicated that the Department of Public Works and Infrastructure planned for a lasting solution at the border post. During the briefing, the Director noted that all farm properties extended up to the international borderline. In addition, the road running along the borderline was under private ownership, particularly the privately owned farms. 

The Department of Defence had use of the road through an agreement with the farmers who owned the farms as the road was on private land. If the State wished to do any work on the roads, it would first seek permission from the farmers, or register a servitude on the land.

The land on the side of the river and between the border fence is considered no man’s land. This part of the land comprised of a long stretch of lost fence, there is an absence of fencing on the other side, while a lethal electric fence existed in the middle, but was decommissioned. It was suggested that drones should be used over no man’s land to ensure security. While the fencing was placed at the borderline, the land beyond the fence up to the river remains South African land.

  1. Site 2 of the Border Fence

The second site was meant to highlight the breaches and vulnerabilities along the newly constructed border post fence. A gate was unlocked that gave access to the middle section of the border fence (which consisted of the existing electrical fence that was in use from 1984), but the current electric fence was decommissioned in 1994.

The PICC team provided the context in terms of the contract of the border fence, as follows:

  • A 2016 contract was used for the specifications; this indicated that the fence built was meant for domestic use (around the office buildings at the border post) andnot to function as a border fence.
  • The fence needed to have an overhang of 45 degrees, with four strands of wire.
  • The contractor indicated that the required 730-millimetre diameter for the border fence was out of stock and therefore decided to purchase the 900-millimetre razor wire.
  • The 900-millimetre razor wire was stretched to 26.67 kilometres to expand it over the entire 40-kilometre fence.
  • With the stretching of the razor wire in such a manner increasing the diameter beyond the required specifications, the contractor saved on construction costs, but still failed to meet the stipulations as per the agreement.

 

  1.  

This part (East) of the 20-kilometre stretch of the fence differs from the other (West) 20-kilometre stretch, which is located mostly on the side where private farms are located on the border. The terrain was more rugged and contained many more breaches than those found on the side where the farms are.

The SIU pointed out a breach where tree branches were packed close to the border fence, which makes it easier for the illegal immigrants to jump over.

The Sand River at the end of the 20-kilometre border fence is dry and does not contain any water. The dry river makes it easy for people to cross the border. If the river was full, the depth and currents may provide a possible barrier as crossing a full river may prove more dangerous.

  1. FINDINGS

 

  1. The Minister of Public Works and Infrastructure gave a directive on 16 March 2020 to the Director-General of the department, directing him to appoint a service provider using the Disaster Management Act (Act 57 of 2002) provisions to initiate emergency procurement procedures to construct and repair the Beitbridge border fence.
  2. The purpose of issuing of the directive was to secure the border in order to prevent the spread of COVID-19.
  3. The SIU found 115 breaches in the border fence[3].
  4. The length of the 40-kilometre border fence was divided at the bridge watermark and the Sand River Bridge to extend 20-kilometres on either side from east to west. Particular vulnerabilities were identified to the West of the new fence where no fence exists for about 500 metres between it and the old fence. To the East, there was a large area the width of a vehicle was breached. Three gates were unlocked on the new fence.
  5. The existing electric fence was in place in 1984 and was decommissioned in 1994 due to policy changes as introduced by regime change. 
  6. The SIU report on the material utilised in the construction of the fence not being according to specifications, as the criteria used for these specifications were those suitable for placing a fence around a building. The stretching of the 900-millimetre barbed wire, instead of the recommended 730 millimetres reduced the concertina effect and therefore made the fence vulnerable. Given these findings, the contractor did not keep to the required specifications for a border fence, and this constitutes a contractual breach.
  7. The new fence was erected away from the existing decommissioned electric fence and closer to the road, which makes it vulnerable to vehicles driving by.
  8. Significant elements of the Borderline Fence Project were not implemented at all. For example, the design of the fence had a final height of 2.2m, and the last actual height of the fence reached no more than 1.8 m on either side of the border gate. 
  9. The barbed wire coils were stretched beyond their recommended effective limit, thus making it easier to scale and cut the fence. These factors undermined the effectiveness of the fence to mitigate border threats.
  10. There were numerous breaches where the fence had been cut open or completely removed, which mighthave resulted in an untold number of migrants unlawfully crossing between South Africa and Zimbabwe.
  11. Given the non-compliance with aspects of the design specification and poor construction practices, the fence was deemed not fit-for-purpose, and current payments in this regard mightalready be regarded as fruitless and wasteful expenditure.
  12. The side, on which the farms were located, included the road, which was said to be privately owned. The farmers seemed to have maintained the road.
  13. A representative of the community mistook the Parliamentary committees for officials from the Departments of Defence and Public Works and Infrastructure and indicated that the community was never consulted, when deciding on the construction of the border fence.
  14. The weak border fence at Beitbridge is undermining the role of the Department of Home Affairs, given that people were passing through into South Africa through the gaps that were identified along the border fence.
  15. The President had deployed soldiers to the border when he announced the official lockdown of the country in March 2020. The soldiers would remain at the border up until the end of September 2020. What is of concern is what will happen along the border between South Africa and Zimbabwe once this heightened security is removed.
  16. It was reported that the contractor was already onsite and engaged to provide repair and maintenance services at the Beitbridge Border Post.
  17. Despite having sat in weekly meetings where matters relating to project implementation progress were discussed, the Minister failed to pick up any anomalies prior to huge payments being made to the Contractor, which meant that she failed to provide leadership on the matter.

 

  1. RECOMMENDATIONS

Having considered the findings that emerged from, and are evident in the deliberations, the committee recommends:

  1. The Minister of Public Works and Infrastructure accountable and responsible for the running of the department and all activities that take place during her tenure, must be held accountable for what transpired in the Beitbridge Border Fence project.Based on the factors as outlined on the National Treasury (NT) report[4]: July 2020 (appended at the end here to assist this recommendation), an investigation into the involvement of the Minister into the Beitbridge debacle should ensue as a matter of urgency (before the end of 2020). The investigation must include whether and how the Minister’s instructionsand directive (made on 16 March 2020) prevented competitive bidding on the project.

 

The Committee further recommends that the Minister of Public Works and Infrastructure:

  1. Ensures that a consequence management process is fast-tracked and implemented to hold all officials and other parties who were found to have been involved in the illegal procurement process of the Beitbridge Border FenceProject to be held accountable by December 2020.
  2. Fully implements the recommendations of the report of the Special Investigations Unit and the Special Tribunal of the SIU to ensure that all state funds are recouped by December 2020.
  3. Ensures that the vulnerabilities as identifiedin the Beit Bridge Border Fence should be vigilantly monitored and repaired as soon as possible.
  4. Commences consultations with the Minister of Defence to get additional patrols of the borderline by the Department of Defence to continue until the breaches in the fence have been fully repaired.In addition to this, a report stipulating routine maintenance to prevent breaches in the border infrastructure should be submitted to the Committee during the fourth term of 2020.
  5. As part of the consultations with the Minister of Defence, provides a report that clarifies the status of the repair and maintenance works undertaken including costs and procurement of goods and services in this regard, given the state of disrepair along the border fence at the Land Port of Entry during the fourth term of 2020. 
  6. Ensures that any future maintenance or construction of the border fence is done in consultation with the Border Management Authority as per the newly signed Border Management Act of 2020.
  7. Facilitates a process wherethe Department of Public Works and Infrastructure reviews all contracts they have in place with Magwa Construction; specifically those related to repair and maintenance projects at other border posts throughout the country. The department should review the legal implications of terminating the current project, and what remedies it can implement to recover the reported losses incurred before the end of the 2020/21 financial year.
  8. Submits site instructions and/or minutes of the meetings to further clarify the role of the Principal Agent that was on site within 30 days of the adoption of this report.
  9. Ensures that the Council for the Built Environment (CBE) addresses breaches in the professional conduct of all the built environment professionals involved in the project through the contractor and principal agent by December 2020.
  10. Briefs and submits a report to the committee on the broader site clearance for the entire Land Port of Entry borderline and plans to ensure that the South African border barriers are fit for purpose during the fourth term of 2020.
  11. Briefs and submits a progress report regarding the disciplinary process against the 14 officials of the Department as listed on the SIU report before 30 October 2020.
  12. Reports to the committee on progress regarding theimplementation of these recommendations by no later than 60 days after the adoption of this report.
  13. Ensures that the old electric fence that was erected in 1984 and decommissioned in 1994 due to policy changes must be recommissioned to ensure that the country’s borders are safe from criminal activity, less prone to illegal immigrants and that the Land Ports of Entry are fit for purpose. This should be done within the ambit of constitutional prescripts.

 

  1. CONCLUSION

 

Parliament’s oversight visit to the Beitbridge Border Post and the 40km Borderline Fence Project have confirmed the concerns raised by National Treasury and the Special Investigations Unit reports. The 40km borderline fence is not fit for purpose and does not pose any significant deterrent to illegal immigrants intending to cross the border between South Africa and Zimbabwe. As part of its oversight responsibilities, Parliament has to hold the executive authority accountable. Therefore, Parliament should use its constitutional powers to continue to monitor that the Ministerand all officials who were found to have acted illegally are held liable for the possible irregular appointment of service providers and subsequent fruitless expenditure. The Committee commits to closely monitor the disciplinary process and recommended investigations, thereby ensuring that there is consequence management for allegedmalpractice and irregularities in the Beitbridge Border Fence Project.

 

Report to be considered.

 

Appendix:

The following extract from the report of the National Treasury (July 2020), is appended to assist the implementation of recommendation 5.1. above:

  • “It is not clear which contract the Minister instructed to be varied (as per 2.4.3 of the conditions). The correspondence from the Minister referred to the variation order but did not provide the description of the order or details of the contractor but it would seem the Minister had a contract, supplier or contractor in mind.
  • The National Treasury is aware of previous contracts at the border post for this service. It is therefore not clear whether there was an existing service provider and why the DPWI did not utilise the services of the current service provider to maintain and service the Beitbridge border post. Due to the extent of the damage and demolished state of the fence it was evident that the fence was not maintained. This calls into question the “urgency” or “emergency” for a service that is to be a continuous one.
  • In one of the documents submitted, DPWI indicated that both Magwa Construction and Profteam CC were approached with the intention to issue variation order, after receiving the request from the Minister invoking section 27(2)(l) of the disaster Management Act 2002. If the Consultant and Contractor were approached after the Ministerial directive, it poses a question as to the purpose of inviting the other Consultant (VCE) and Contractors (Hillsite Trading, and Asatico) to the site inspection meeting.
  • The invoices paid to Magwa Construction does not make provision for the items on the BoQ that were completed. The grounds on which the completion certificate was signed off is not known.
  • In terms of separation of powers, the Executive Authority, must not interfere in administrative functions.

The minutes dated 19 March 2020 stated that, the contract commencement date is 18 March 2020. This means that the contract took effect at the site inspection meeting prior to the appointments being approved by the NBAC. This transaction may be deemed to be irregular.”

 

[1] AgriSA is a federation of agricultural organisations consisting of nine provincial and twenty-five commodity organisations, as well as 56 corporate members. The organization, through its affiliated membership, claims representation of a diverse grouping of individual farmers regardless of gender, colour or creed.

[2] The Technical Team would provide Project Management, Architectural, Quantity Surveying, Social Facilitation, and cost accounting services with which to do an assessment of the project site, and to arrive at a properly calculated BOQ and Scope of Works for the project. The Technical Team provides crucial components that ensure the cost-effectiveness and that the planned impact of the project is reached.

[3]This was reported to the committee as per the SIU site visit on 4 and 5 May 2020.

[4] See the extract from the NT report provided at the end of this report as an appendix to assist the implementation of this recommendation.

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