The main exhibits in the P74 million lawsuit that an outdoor advertising company has brought against the Gaborone City Council (GCC) will be a letter whose contents were described as grossly misleading by a former councilor as well as an internal audit report. The central figure in this case will be former mayor Kagiso Thutlwe.
Last week’s Monitor reported that the company, Goleba Outdoor, is demanding P74,454,026 from GCC as damages for loss of business. Sunday Standard reported about the GCC-Goleba Outdoor deal in 2019 when some councilors asked some tough questions about it. Alongside two other companies, Goleba Outdoor was allowed free use of 10 billboards sites in the city. This was done on the strength of a letter that Thutlwe wrote on September 17, 2017. In the letter, the former mayor writes that GCC‘s Executive Committee had “resolved to take deliberate steps to radically empower the marginalised groups.” Such empowerment was in the form of reserving 30 percent of outdoor advertising space to “verified marginalised groups” which he listed as women, youth and disabled persons.
However, contents of the letter were disputed by the Marulamantsi Councillor, Sergeant Kgosietsile, who told Sunday Standard that the Executive Committee never made such resolution and that if it had, the resolution would have had to be formally presented to the Full Council – which had never happened. The other point that he made was that the mayor’s involvement in this matter was not only unusual but unlawful as well. Kgosietsile’s explanation of “unusual” was that communicating Council resolutions to members of the public was a purely administrative matter that didn’t require the personal involvement of the mayor. Additionally, the Town and Country Planning Act confers power and authority to deal with the issue at hand on the GCC Physical Planning Committee and not on the mayor’s office. At this point in time, Kgosietsile was the Deputy Chairperson of the Physical Planning Committee and in his letter, Thutlwe had asked Goleba Outdoor and the other two companies to “liaise with Physical Planning Department to facilitate with immediate effect.”
However, Thutlwe hadn’t himself liaised with relevant GCC staff himself. A month after the letter was written, a Council employee, K. K. Masara, cautioned Goleba Out Door about its “illegal erection of billboards.” Masara’s October 27, 2017 letter reads in full: “It appears that there are billboards that you have erected along major streets within Gaborone planning area without planning permission. These operations are in breach of the Town and Country Planning Act of 2013. The developments that you have undertaken are therefore illegal and you have breached the law. You are therefore to stop all the illegal activities within the city, remove all the erected billboards and to convert the land to its original state within 7 days. Failure to do so will result in an enforcement notice being served against you as per the Town and country Planning Act of 2013.”
As a GCC employee, Masara was supervised by the Town Clerk (GCC’s administrative head) who is a member of the Executive Committee that, according to Thutlwe’s letter, had resolved to give preferential treatment to Goleba Outdoor. Masara wrote his letter on behalf of the Town Clerk who was supposedly party to a decision to allow the company do what a letter written on his behalf said was illegal.
Thutlwe’s decision was also not communicated to the GCC Physical Planning Committee, which in terms of the Town Planning Act, issues the planning permission that Masara’s letter said Goleba Outdoor didn’t have. While Thutlwe’s letter exempted the three companies from having to pay the usual fees, it didn’t (couldn’t) exempt them from going through all the necessary steps for occupying sites.
What Kgosietsile said would be confirmed by an internal audit that was carried out by GCC staff. The audit had been triggered by a motion that had been tabled by Specially-Elected Councillor, Kagiso Ntime. The motion read in full: “That there be an internal audit of the Physical Planning Committee, His Worship the Mayor’s Office and the Accounts Department to ascertain the validity of allegations of malpractices and maladministration amounting to corruption.”
After the motion gained passage, the Town Clerk ordered a special audit to determine whether the advertising space had been allocated unlawfully as had been alleged. In a report that was presented to the Full Council in late 2019, the investigators stated that allegations made against the mayor were indeed true – that he unlawfully allocated advertising space to three companies. This allocation was done on the back of a falsified resolution which itself had not been cleared through the Full Council as local government processes require. One of the people that the investigators interviewed was the former GCC Town Clerk, Mpho Mathe, who was part of the Executive Committee that Thutlwe claimed to have consulted. Mathe disavowed knowledge of the resolution that Thutlwe referred to in his letter.
The audit report says the following: “Although the Executive Committee suggested that in allocating new spaces for erection of billboards, the marginalised groups like youth be given priority, no resolution was taken to reserve and allocate spaces. The former Town Clerk responded by indicating that there was no exact number of available spaces that could be allocated.”
Naturally, the investigators sought minutes of that meeting but met what appears to have been resistance from Town Hall’s powers-that-be. The report notes as the only “limitation”, that it took “two full weeks” for minutes of this meeting to be submitted to the Audit Office.
The audit report also rapped Thutlwe on the knuckles for contravening the Code of Conduct for Councillors. The latter states that councillors shouldn’t interfere in the management or operations of any Council department.
“Audit is therefore of the view that the Mayor has interfered in the operations of the Physical Planning Committee by writing letters which could have been written by the Committee (if need be) to its clients.” The report advised Thutlwe to “desist from writing letters to external parties/clients [and instead] go through the Office of the Town Clerk.”
Down the road, GCC became more aggressive and chased Goleba Outdoor out of the contested sites. That is what led to the P74 million lawsuit. In its court papers, the company makes direct reference to Thutlwe’s letter: “On or about September 14, 2017, the application was approved and the permission granted. This approval was by way of a letter by the Mayor and copied to the Town Clerk. The said letter advised that ; the council had applied their minds to the billboard applications; they have took it to the Executive Committee for consideration; 10 sites were approved to the company; and that the company is advised to liaise with the Physical Planning Department to facilitate with immediate effect.”
This case happens with Thutlwe, Kgosietsile and Ntime having left the GCC.
