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'Something rotten' about crayfish poacher penalty

Top official accuses deputy of failing to account for R55-million

10 June 2018 - 00:00 By CAIPHUS KGOSANA

Top officials in the Department of Agriculture, Forestry and Fisheries are at loggerheads over a "missing" R55-million that crayfish poacher Arnold Bengis was ordered to pay in restitution.
Director-general Michael Mlengana has accused his deputy in charge of fisheries, Siphokazi Ndudane, of a series of transgressions and wants to suspend her.
Mlengana alleges that Ndudane was responsible for repatriating the R55-million from the US but says it cannot be accounted for. The money is part of restitution that a judge in New York ordered Bengis - originally from Cape Town but now believed to be in Israel - his son David and a US associate to pay the South African government for seriously depleting crayfish stocks.In a letter to Ndudane in which he asks her to furnish reasons why she should not be suspended, Mlengana also accuses her branch of wasting R30-million on two legal firms to help with the case when it could have sought legal advice from state attorneys for free.
But Ndudane has hit back, saying Mlengana has no authority to suspend her as she reports directly to the minister, Senzeni Zokwana. She maintains that public service regulations do not give Mlengana the power to suspend her.
In the letter, Mlengana writes that the R55-million could not be traced despite an assurance by Ndudane to senior management that it had been transferred to the department in April 2016.
"You advised the department that an amount of R55-million was transferred from the US government to the South African government, which was transferred to the department and from the department to the Marine Living Resources Fund. No one, including the then DG and the chief financial officers, are aware of this transaction. There seems to be no record of such a transaction," he wrote.
The poachers, who exported illegally caught West Coast crayfish to the US, were convicted by the New York judge in 2004 and nine years later were ordered to pay $22.5-million to the Department of Agriculture, Forestry and Fisheries.
The Bengises paid only $1.25-million, and in July last year the US court penalised them by increasing the restitution amount to $37-million (about R480-million at this week's exchange rate). The court also released $3-million, previously forfeited to the US by the Bengises, for payment to South Africa.
Ndudane describes Mlengana's allegation that the R55-million could not be accounted for as "simply false".
Ndudane said the $1.25-million had been transferred from the US department of justice and was paid to the Marine Living Resources Fund, amounting to R17.8-million."This transaction was signed off by the CFO [chief financial officer] and the acting DG at the time. Documentary evidence is available confirming this," she said.
She gave no explanation for the amount of $3-million, which appears to be the balance of the R55-million cited by Mlengana.
Zokwana - who has long had strained relations with Mlengana - supported Ndudane's position that the director-general could not act against her without approval.
"Such an undertaking [to suspend a deputy director-general] cannot happen without formal consultation with the minister," he said in a statement to the Sunday Times.
"If the DG has these intentions, we will first have to meet. If the reasons are compelling, the minister will grant currency to the DG to proceed with suspension and disciplinary processes. But as it stands, such a process has never happened."
Mlengana also accuses Ndudane of authorising what he said were irregular payments of R22-million to law firm Barnabas Xulu and Partners and R8-million to Emang Basadi Legal and Forensic Services after the US government sought South Africa's help in prosecuting the poachers.
"The use of aforementioned private legal firms/companies was unjustified given that the offices of the state attorney/state law advisers were never approached to render the required services to the branch ... these costs seem exorbitant for just one branch within the whole department and for only two service providers," Mlengana wrote.
But Ndudane said her section had bypassed state legal advisers because they were unable to assist in such a complicated matter.
"Firstly, government departments are not obliged to use the state attorney's office under any law.
"Secondly, the state attorney's office had failed to demonstrate any expertise and ability to successfully lead and help prosecute this matter since 2007-2008 and had also failed to recover monies held by US courts, payable to the South African government," Ndudane responded...

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