Southern Regional Magistrate Lot Moroka has ruled that Ephraim Kelaeng, the former Principal Engineer of the Department of Water Affairs, who was charged with having given false information concerning the P80 million tender award for the construction of Ntimbale Dam, has no case to answer.
The case against Kelaeng was that he had given false information in a letter he had written to the Public Procurement and Assert Disposal Board on the performance of ASA Enterprises, which was being considered for award of the P80 million tender.
The letter recommended that the company should not be given the tender because it had performed poorly on the Serowe Water Emergency Project.
In his ruling, Moroka said that it was the government’s responsibility to prove beyond reasonable doubt that Kelaeng had given false information on ASA Enterprises performance but added that it had failed to prove a prima facie case against him.
The Regional Magistrate said that if any person knowingly gave false information or false statements, he is guilty of an offence under the Directorate of Corruption and Economic Crime Act, which criminalizes giving false information.
He said evidence put before Court was that in 2002, ASA Enterprises was awarded tender for the Serowe Water Emergency Project, which was supposed to have been completed on November 3, 2003 but was subsequently completed on October 21 2004. He said that it was also evident that ASA Enterprises did not deliver the project on the set time and that the reasons on record for that were that the company did not have enough manpower on site, plant shortages, and disruptions by weather, soil type and unavailability of power.
Moroka said that Joseph Nyandiko, who was Kelaeng’s junior and other site engineers were Kelaeng’s eyes and ears on the project, adding that minutes of various site meetings that were held to evaluate the project and that were put before the Court showed that the project was not going well and that, at some point in a meeting, board members threatened to terminate the project as a result of non performance by ASA Enterprises.
He also said that there was enough evidence showing that liquidated damages had been imposed on the company, stating that other than that, the project was completed and ASA Enterprises and Water Affairs parted ways.
After that, he said, ASA Enterprises tendered for the P80 million Ntimbale Dam project. PPADB adjudicated over the tender and Kelaeng wrote a letter to PPADB on the poor performance of ASA Enterprises on the Serowe project, resulting in the contract being awarded to Unique Construction.
The question that the Court then had to answer, he said, was whether the letter Kelaeng wrote was true or false. He said that the Court had observed that relations between Kelaeng and his former deputy Nyadiko were strained and that this had captured the Court’s attention. Nyadiko’s evidence, Moroka said, was radically different from that of other witnesses who had stated in evidence that there were concerns about the performance of ASA Enterprises and that there was a meeting that sought to terminate their contract but that this was not done because the contract was an emergency one and had to be completed.
He said that Geoflux, a consulting engineering company, had also written a report on the poor performance of ASA Enterprises. On account of all this, Moroka said that it was true that ASA Enterprises was a weak performer and that Kelaeng as an overall engineer was best placed to make the recommendations he did and that the contents of the letter he had written were right.