City Power CEO, Mr. Mongezi Ntsokolo, Controversially ‘Subjecting the Power Utility in a Self-Help Scheme’ on the Eldorado Park Sub-Station Project

Brian Kazungu, 09/04/2021

Yesterday, following a visit to the Eldorado Park Sub-Station Upgrade Project, City Power CEO, Mr. Mongezi Ntsokolo controversially stated as true and fact that the contested electricity power equipment including four transformers at the site were the exclusive property of City Power.

The Power utility’s claim to the equipment without a court order has been described as criminal and or tantamount to Self-Help since the contract was previously terminated on allegations that Setheo was paid for no value exchange in this turnkey project despite an advance payment.

According to Cornell Law School, based on Nolo’s Plain English Law Dictionary, Self-Help refers to the obtaining of relief or obtaining rights outside the normal legal process.

The Eldorado Substation project which was halted when Setheo’s contract with City Power was unilaterally and arbitrarily terminated at the instigation of former Mayor, Mr. Herman Mashaba has now resumed under a new contractor but the rights to use the equipment is being contested.

Setheo, the former contractor in this project says that the existence of this equipment on site is proof enough that the basis for cancelling their contract was misguided and that the arrest of their staff and continued incarceration of one of its members was irregularly and criminally done.

C2C-BOAF Legal Literacy Network member, Mr. Frederick Kyle who is also a lawyer described City Power’s claim to the contested equipment as bizarre, perplexing and unfathomable.

“In the absence of an express agreement between Setheo and City Power that ownership will vest in City Power once payment has been made for the specific equipment, City Power can’t assume it is the owner or claim ownership.

What should have happened is that City Power should have obtained a court order to clothe the decision to proceed with the project with new contractors with some legality and constitutionality.

What is perplexing, though, is that City Power is also a complainant against its own employees, Setheo and directors of Setheo, alleging that Setheo received R66 million for works not done and as such no equipment or supply existed that could have been purchased with the alleged stolen funds.

If the contract between City Power and the contractor made provision for transfer of ownership in the equipment when a certain amount has been paid (the equipment’s value at least), then ownership could have lawfully transferred hands.

It is bizarre that a CEO of City Power could conclude that the equipment in question is theirs when the responsibility to identify and procure equipment was the obligation of Setheo in relation to the turnkey project.

It is unfathomable that City Power could be a legitimate complainant in relation to equipment that it already possesses and was visible at the site.”

In this presence of Advocate Ms. Lindiwe Maseko, City Power’s Chairperson and former Gauteng Speaker, iniAfrica News asked the MMC, Councilor Mpho Moerane to comment on the ownership dispute in relation to assets purchased by Setheo in this turnkey project.

Councilor Moerane whose response was that the matter is before the Courts and as such being considered prejudice was then asked to speak on the recent case opened with the police on serious allegations of unlawfully confiscating the equipment.

He could however not shed any light on the legality of the decision to take any next step on a matter that is pending before the Courts.

Legal expert, Mr. Kyle further stated that: “Based on the facts of this matter, it cannot be disputed that the actions of City Power are ultra vires the law and constitution.”

The mere fact that City Power alleges that they become owners of the equipment because of the payments made in respect thereof should be enough for the NPA to withdraw the charges against Setheo and other parties.

I am not sure how City Power can be a witness or complainant on a fraud that never occurred. I have listened to the video in which Councilor Moerane said that he investigated the Setheo contract and concluded there were issues related to the contract.

It is not clear how this purported investigation resulted in a binding determination that Setheo’s rights in relation to a valid and binding contract could be forfeited to City Power outside the four corners of the law.

I hope that Setheo’s criminal case is also against the new contractor, Actom, because the new contractor must explain why it can use or has access to the equipment at the site and working on a project that Setheo was assigned to after going through tender.

I think that it was a bad move on the part of Actom, but be that as it may. It is their life and not mine. Ultimately, everything depends on who is the owner. That is the key question to be investigated and established.

If Setheo can prove can prove positively that it played a part in the ordering and processing of the same resulting in the creation and delivery of objects of value to the site, it is adducible that the police should procure a Court warrant to confiscate the equipment and hold it as evidence for the criminal trial.”

This matter raises serious ethical, legal and constitutional questions. It is fact that self-help is inimical to the rule of law. The right, title and interest in any property must be located within the ambit of the rule of law.

City Power is a creature of law and as such it must be subject to the law and benefit from the protection of the law.

It is scary that no law or authority supports the unilateral and arbitrary actions by Mashaba and his ANC successors.