“A conflict of interest is a set of conditions in which professional judgement
concerning a primary interest [such as the public’s interest or valid research]
tends to be unduly influenced by a secondary interest
[such as personal relationships or financial gain].”
APPARENT BIAS OF MANAGEMENT TOWARDS PROPERTY DEVELOPMENT
It may be that the current municipal management is determined to drive a pro-development agenda. This may explain why the municipal officials appear to be determined to let a highly controversial developer manage the ISDF process, despite the glaring conflict of interest and regardless of the expected public outcry that had to be anticipated following the appointment.
The municipal management and Knysna’s most controversial developer are on the same side and positioned in an adversarial relationship to the very constituents the municipality is tasked to serve.
The efforts of individual objectors have been frustrated by the municipal manager, Lauren Waring, who has written to objectors that “no person may interfere with the Supply Chain Management System of a municipality”, thereby leading them to believe that they may not object. Objectors have been advised by the municipal manager that they will be allowed to comment on the first draft of the ISDF, rather than participate in formulating that document. See annexure “T”. This is far too late, because the underlying principles of the ISDF will have been established in that initial draft, making it excessively difficult to challenge or alter them. This is also in conflict with the Terms of Reference, in which the following is stated under the heading, “Community Consultation”:
“A public participation process will need to be undertaken throughout the project for all steps. The objective of the public participation is to ensure that credible inputs are attained from the public i.e. local businesses and organisations and the general public. A successful development initiative builds on the motivation of individuals to pursue project outcomes, as well as the willingness and ability of many individuals to formulate a shared vision. It does not make sense to suggest projects which local actors do not find plausible, and it does not make sense to suggest projects which involve the collaboration of actors who cannot work together. Thus, the aim is to ensure that the outcome is widely regarded as credible, appropriate, achievable and equitable.”
Another concern is that the Chamber of Business is part of the steering committee that will draft the ISDF, while the Knysna Environmental Forum is barred from the panel.
On the 30th of April 2013 Ms Waring addressed a letter to various objectors.
In the letter Ms. Waring indicated that KCHC have been appointed by the municipality to supply the ISDF, whereas KCHC should not have been appointed prior to the expiry of the objection and appeal period.
Reference was made to the wording of the “purported objections”, indicating a lack of understanding of the fact that most objectors are not lawyers, but citizens who are voicing their dissatisfaction with the decision of the BAC. The letter is annexed as annexure “U”.
Ms. Waring advised objectors that the municipality had obtained legal advice on whether it should act on the “purported” objections, in terms of section 50 of the Municipal Supply Chain Management Regulations and on the effect that the objections would have on service delivery. This is vague and embarrassing, if not arrogant, as the municipality has to follow the supply chain management regulations. The effect objections may have on service delivery, is irrelevant. Ms. Waring chose not to share the outcome of the legal advice with objectors and the letter serves only to further confuse objectors, who are left wondering whether their objections will be taken into account. A letter to Ms. Waring to clarify the confusion was to no avail and received the following reply, “Your correspondence is hereby noted”.
In addition to this, information requested, to enable stakeholders to formulate an informed objection to the award of the tender, has not been received. The day after the award of the tender, Ms. Campbell requested information on behalf of various stakeholders representing varied interests to enable them to prepare an objection.
Although Mario Bonthuys, to whom the request was addressed, has tried to assist in obtaining the information, nothing has been received except for the report of the BEC, the Terms of Reference and the minutes of the BAC meeting in March and not the meeting at which the tender was awarded. We have now been advised that the municipal manager has referred the request for information to Attorney Frans Fisher [Ed: how rotten is our democracy when a public servant seeks legal advice regards her withholding information from the public???]
The lack of information has made it difficult to submit an informed objection and we have had to rely on information within the knowledge of individual members our group and obtained from other sources, such as the internet. We reserve the right to supplement our papers should it be necessary once the information is received.
Objectors were advised to submit all objections to Ms. Waring. We have since been advised that some objectors were unable to send their objections to Ms. Waring or Mr. Pasmore per email as the server would not accept these objections.
On the 30th of April, objectors who had previously submitted objections were advised by Ms. Waring to submit all e-mail responses to firstname.lastname@example.org by close of business on 7 May 2013. This information was not known to any objectors who had not yet submitted objections. There is no way of knowing how many objectors have been unable to submit their comments by e-mail. This is another example of the way management is frustrating the efforts of objectors.
Questions have to be asked about the publishing of the tender advertisement. At the BAC meeting, Ms. van Schalkwyk informed the committee that the ISDF process was unique and had never been done before in South Africa. From the terms of reference it is clear that the process will involve a high level of expertise from individuals equipped with scarce skills. One would have expected the tender to be widely advertised, nationwide, where it would reach highly skilled consultants, yet the tender was advertised in the Action Ads, Knysna-Plett Herald and Die Burger. The former publications are only distributed locally. Die Burger is a Western Cape newspaper, which is probably not widely read by the professionals, the tender was aimed at. Considering the onerous requirements of the tender, the advertising period of three weeks was very short.
This and the fact that 25 points were awarded for local knowledge in the bid evaluation process, creates the impression that local consultants were favoured in the tender process. The superficial comparison between the two lowest priced bids by the BAC and the fact that no attempt was made to investigate the aspect of conflict of interest, which had been raised by the compliance officer, suggests that CMAI are the local consultants management would prefer to work with.
The appointment of CMAI to prepare the Rheenendal structure plan and the fact that the two processes have to be aligned with each other reinforces this perception.
Whereas it is justifiable to favour local suppliers where goods are supplied to a municipality, the opposite applies to tenders of this nature, as the employment of local consultants significantly increases the risk of conflict of interest as well as conflict with the constituents the municipality has to serve.
POTENTIAL COMPETITIVE ADVANTAGE
The ISDF Terms of reference lists the following requirement under the section dealing with the SDF:
“The following supplementary and supporting documentation and plans must accompany the SDF and should include the following:
A comprehensive audit of all vacant land as well as underutilised land within the Greater Knysna Municipal Area – providing detail on land ownership, categorisation, development potential” (a more general assessment of vacant developable land would have been covered as part of the status quo assessment);
The CMAI website lists “identifying and assessing the development potential of large land holdings”, as one of their specialities.
The information obtained by CMAI during the process of the audit of developable land, including land ownership, could provide Dr. Mulder with a competitive advantage over other property developers, in that he would have information of all developable land and potential access to the land owners, enabling him to contact these landowners with development proposals.
The ISDF contract includes the following plan that has to be prepared as part of the SDF.
“A plan which clearly identifies where development and infrastructure investment (both public and private) should take place.”
This requirement clearly illustrates why a local developer cannot be tasked with the preparation of the SDF. CMAI will be positioned to identify areas where it or its potential clients own developable land and ensure that infrastructure investment takes places in those areas. This again potentially gives Dr Mulder a competitive advantage over other developers and planners.
As the SDF focuses on short (five year), medium (up to 15 years) and long term (up to 30 years) planning, no developer or planner operating in Knysna on a regular basis should be appointed as the risk of conflict of interest is high and cannot be managed or controlled.
An e-mail circulating in Knysna, in support of CMAI’s appointment, alleges that CMAI has no pending development applications in Knysna and will only be responsible for 25 per cent of the tender.
This is incorrect as George Rex Place is pending and Dr. Mulder’s client, PG Bison has appointed CMAI to investigate a commercial and residential property development in Rheenendal. Uitzicht still looms large over Belvidere and is listed as a current client on the CMAI website. CMAI is in the property development business and operates from Knysna and Dr. Mulder resides in Knysna. The outcome of the process is crucial to CMAI’s future development prospects.
CMAI HAS BEEN APPOINTED AS PROJECT MANAGER AND WILL BE IN CONTROL OF THE ENTIRE ISDF PROCESS.
Taking into account all the above factors, the award of the ISDF tender to Knysna Creative Heads should be set aside and the tender awarded to the highest combined scoring bid. Knysna Creative Heads Consortium should be disqualified due to conflict of interest.
Thank you to the Western Heads Protection Group, Western Heads-Goukamma Conservancy and Susan Campbell for this intense, informative and engaging read. Whether you agree or disagree, their enormous effort on behalf of Knysna’s citizens is a wonderful rarity and commendable.
To all players mentioned (PG Bison, Chris Mulder, Marike Vreken, Mike Maughn-Brown, Lauren Waring etc.), the goal is a clear picture so you are welcome to contest any info. We also request that you be willing to answer questions we send you via mail [note to the public that Chris Mulder, Lauren Waring and PG Bison did not responded to requests for input i sent them].
Click here to read:
- Environmental Groups Object 1: ISDF Tender Award & Chris Mulder
- Environmental Groups Object 2: CMAI & Chris Mulder’s Plans
- Environmental Groups Object 3: PG Bison/500 Houses for Rheenendal?
- Environmental Groups Object 4: PG Bison Bullies Environmentalists?
- Environmental Groups Object 5: Mike Maughan-Brown
- Environmental Groups Object 6: Conflicts of Interest
- Environmental Groups Object 7: Conclusion