Public Protector Report: She takes credit for removal of ministers; van Rooyen and Brown

11 Jun 2018
A formal look of Busisewe Mkhwebane

PBM

Public Protector, Busisiwe Mkhwebane, is taking some credit for the removal of two politicians as ministers by President Cyril Ramaphosa. This was reference to former Cooperative Governance and Traditional Affairs Des van Rooyen and former Public Enterprises Ministers Lynne Brown respectively.

Releasing her 2018 first quarter report Mkhwebane said her office seeks to  strike a balance between the “bread and butter” cases and “high profile” matters.

She added “We have done well on both sides of the balancing act. For example, President Cyril Ramaphosa has intimated that at least two of my investigations have caused him to remove as many high profile politicians from his cabinet, namely former Cooperative Governance and Traditional Affairs and Public Enterprises Ministers, Mr. Des van Rooyen and Ms. Lynne Brown respectively. This was after I found that the two had misled Parliament on two unrelated matters.”

Here follows her full statement.

My office recognises that the news media remains the most effective way through which we can comply with these constitutional and legislative requirements. We therefore continue to rely on you to bring to the attention of the public the outcomes of the critical work we do in our shared quest to strengthen constitutional democracy.

Allow me to remind you of the simple but powerful words of Chief Justice, Mogoeng Mogoeng, when he handed down the historic judgment in the Economic Freedom Fighters and others versus the Speaker of the National Assembly and others case in March 2016. The ruling read, in part: “ … The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average South African. For this reason, the fathers and mothers of our constitution conceived of a way to give even the poor and marginalized a voice, and teeth that would bite corruption and abuse excruciatingly. And that is the Public Protector …”

One of the key takeaways from this particular extract of that definitive judgment is the reference to the severity of poverty in our nation and the emphasis on how this office is the voice and teeth with which the poor and the marginalized can pull themselves out of the doom and gloom.

Uppermost in my mind when I walked into this office in October 2016 was this idea of a Public Protector as a refuge for the poor and the marginalized, a resource through which they could hold their leaders to account and in the process improve their quality of life so that they too can enjoy the fruits of freedom and democracy.

I have since been engaged in a relentless effort to rally the Public Protector South Africa team of capable, experienced and devoted men and women in pursuit of what I call Vision 2023, a detailed plan that simply seeks to take the services of this institution to the grassroots.

You may wonder who or what I refer to as “the grassroots”. In simple terms, the grassroots are “the poor and the marginalized” who Chief Justice Mogoeng referred to in the landmark judgment I quoted moments ago. It is the masses who, day in and day out, toil in the farms to earn an honest living but still struggle to put food on the table, live under horrendous conditions and have neither job security nor security of tenure.

It is those who live and raise children in inhabitable makeshift structures that they call homes; homes that are prone to fires or flooding during inclement weather. It is those whose children miss a lot of schooling when it rains because there are no bridges for them to cross raging rivers which cut them off from the rest of the world.

It is those, who, in their hour of need, are turned away at the gates of public health care clinics to go home and die because they turned up at the facilities after “normal operating hours”. Others are discharged from these facilities without medication and are advised to rely on home-made remedies because the once fully-stocked shelves of public medication depots are bare. It is also those what are fortunate to hold a decent job and have a regular income but it is not nearly enough to afford them a lawyer when they want to litigate against the mighty state.

All these and more are their reality despite the fact that, every year, without fail, budgets are passed for 47 national government departments; 110 provincial government departments; 257 metropolitan, district and local municipalities as well as hundreds of other organs of state and public bodies. Alive to these realities, the team and I devised Vision 2023, which is propelled by eight pillars, namely: a) Enhancing access; b) Using indigenous languages to communicate; 3 c) Expanding our footprint; d) Leveraging stakeholder relations and signed agreements in that regard; e) Empowering people to understand their rights; f) Projecting an image of a safe haven for the poor; g) Encouraging the establishment effective internal complaints resolution units; and h) Turning communities into their own liberators.

The end of this week will mark exactly 20 months since I walked into office to spearhead this mammoth task of taking the services of the Public Protector to grassroots as per this Vision 2023. Accordingly, it makes sense to take stock of what we have achieved thus far. In the year 2016/17 and 2017/18, we have had a total workload of 25 288 complaints. Out of these, we finalised 21 176. I must indicate that the statistics for 2017/18 are still undergoing an audit process and so, the picture might change slightly. It is an established fact that the majority of our cases are finalised through Alternative Dispute Resolution methods, where we sit the warring parties around the table and find solutions. Once there is an agreement, we proceed to prepare settlement agreements which the parties sign to put the matters to rest.

Some of these cases are matters that shouldn’t be coming to us, for they can best be settled elsewhere. That is why this year, we will be embarking on a roadshow, which will seek to encourage the public to exhaust available remedies before turning to the Public Protector while at the same time persuading organs of state to establish effective internal complaints resolution units. This will help free our hands so that we can deal with systemic problems and even go as far as doing more own-initiative investigations. It is only in more complex service failure and conduct failure cases such as alleged corruption, abuse of state resources, improper enrichment and so forth that we issue formal reports upon finalisation of investigation processes.

In the 20 months that I have been at the wheel, we have issued no less than 50 investigation reports, including those I am releasing today. That is an average of two reports per month. These are not merely numbers. A real impact on the lives of those affected and on state governance systems has been and continues to be made.

In the Eastern Cape, for example, where I investigated allegations of misappropriation of public funds, improper conduct and maladministration by the provincial government and several other organs of state in connection with expenditure incurred for the Nelson Mandela funeral and found among other things evidence of widespread irregular, fruitless and wasteful expenditure in the procurement of goods and services 4 for the memorial and funeral, the impact of my remedial action is being felt in entire provincial administration.

Apart from the provincial Director-General, who is taking a section of the remedial action on judicial review, the rest of the organs of state, including the provincial Development Corporation; the provincial Parks and Tourism Agency and the Buffalo City, King Sabata Dalindyebo Local, OR Tambo District and Nelson Mandela Bay Metropolitan Municipalities are implementing the remedial action in full and are cooperating. We continue to monitor progress in this regard. For residents of the notorious Glebelands Hostel in Umlazi, Durban in KwaZulu-Natal, today is better than yesterday.

Following our investigation and subsequent report with strict directives on what to do to remedy instances of maladministration and improper conduct that I found there, the South African Police Service is responding well. Officers from the SAPS’ Public Order Policing and Visible Policing units and members of the Metro Police are regularly deployed within the hostel to maintain safety, security, peace, law and order. Other members of the Metro Police are deployed on the outer perimeter of the dwelling. In addition, cases of alleged police brutality are with the Independent Police Investigation Directorate.

The Provincial Police Task Team is dealing with cases of murder, attempted murder, intimidation and illegal possession of firearms, which were previously dealt with by their colleagues in Umlazi. The cases have had to be transferred to the Task Team after the community expressed discontent with Umlazi Police Station. The cases under investigation by the Task Team include 57 of murder within the hostel, 14 outside the hostel and three in areas outside Umlazi; and 69 of attempted murder within the hostel, three outside the hostel and one in an area outside Umlazi.

Social development and municipal services concerning the hostel are also being attended to by competent authorities. We continue to watch the situation closely to ensure that every piece of remedial action in our report is implemented, and that this is done within the timeframes stipulated in the report. Similarly, for the community of the informal settlement of Masiphumele a stone’s throw from affluent Fish Hoek in Cape Town, Western Cape –an area ravaged by regular violent service delivery protests before our intervention– today is definitely better than yesterday and tomorrow will be even better. When we first arrived on the scene, sewage was stagnating in storm water canals which cut through the settlement, posing a hazard to children who played along the canals’ banks, totally unaware that they were exposed to extreme danger.

Due to poor sanitation facilities, the canals also served as a deposit for night soil. Water supply was poor and the community contended with the problem of overcrowding. Today, the City of Cape Town is fixing all of that and the local community led by Mr. Tshepo Moletsane is happy, thankful and hopeful about the future. 5 The same rings true for a Western Cape gentleman, who has struggled to secure something as simple as an Identity Document since 1999 until my office stepped-in to help him secure the all-important document. I recently ran into the man’s sister, who had nothing but praise for the modest work we do.

For many of our critics, such cases are insignificant and don’t count as “work”. This is because, in their wisdom, the work of this office should be one-dimensional and focus on the so-called high-profile cases. But for the people affected, an “insignificant” problem such as not having an identity document for 18 years, not only means that, for that period of time, you don’t exist officially, you also can’t apply for an RDP house, you can’t get an education, you can’t access health care services, you can’t apply for a driving license, you can’t get employment, you can’t apply for credit, you can’t travel and you can’t vote.

These are things critics will never understand. But even if we wanted to bend over backwards for and pander to the critics, we would still fail dismally because nine out of every 10 matters in our caseload are issues that concern people at the grassroots and thus do not generate media appetite as high profile issues do. Our approach has been to strike a balance between the “bread and butter” cases and “high profile” matters. We have done well on both sides of the balancing act.

For example, President Cyril Ramaphosa has intimated that at least two of my investigations have caused him to remove as many high profile politicians from his cabinet, namely former Cooperative Governance and Traditional Affairs and Public Enterprises Ministers, Mr. Des van Rooyen and Ms. Lynne Brown respectively. This was after I found that the two had misled Parliament on two unrelated matters. Let me just state this for the record: We are not against criticism. We enjoy no insulation from scrutiny.

Ultimately, it is constructive censure, among other things, that builds individuals and institutions. Accordingly, we will continue to welcome criticism with humility. But we will also ignore banter which is only aimed at projecting us as people who do not know what they are doing when the facts are there for everyone to see, for we believe such unsubstantiated criticism only serves to distract us.

The reports

I now turn to the reports that have brought all of you here this afternoon. There are seven of them and they cover important thematic areas, including violations of the Executive Ethics Code, safety in the workplace, workers’ compensation, labour matters, staff appointment and tender irregularities.

Kgomongwe Security Services versus Ga-Segonyana Municipality

I investigated alleged irregular and improper awarding of a security tender: 6/2012 to Ikgodiseng Business Consulting CC (IBC) by the Ga-Segonyana Municipality.

The Complainant is Mr. Mpho Oss, a Director of Kgomongwe Security Services. He lodged a complaint in September 2012 on behalf of his company, alleging that the Municipality did not follow proper procurement procedures in that it awarded a tender to IBC for a period of 36 months despite the fact that IBC’s bid was non-responsive in 6 that IBC submitted copies of a tax clearance certificate instead of original documents, and PRISA and BBBEE Status Level certificates which were not certified.

Issues investigated, and findings:

  • a) Whether the Municipality unduly failed to follow proper procurement processes when appointing IBC and whether such conduct constitutes maladministration? (Allegation substantiated)
  • b) Whether the Complainant suffered prejudice as a result of the Municipality’s failure to follow proper procurement processes when appointing IBC? (Allegation substantiated)

The appropriate remedial action I am taking with a view of placing Kgomongwe Security Services as close as possible to where it would have been had the improper conduct or maladministration not occurred is as follows. The Municipal Manager to:

  • a) Take appropriate steps, within 30 days from receiving this report, to ensure that all Municipal officials involved in Supply Chain Management are properly trained in the MFMA;
  • b) Issue a written apology to the Complainant within 30 days of the issuing of this report;
  • c) Consider taking appropriate disciplinary action, within 30 days from receiving my report, against all the BAC members;
  • d) Compensate the Complainant an amount of R2 530.00 being costs he incurred in preparing the bid tender documents; and
  • e) Submit an Action Plan to the Public Protector, within 15 days of the issuing of the final report, indicating how the remedial action will be implemented.

The Municipal Council to:

  • a) Within 30 days of receipt of this report, consider taking the necessary disciplinary action against Mr. Elias Ntefang, the Municipal Manager at GaSegonyana Municipality;
  • b) Within 30 days of receipt of this report, investigate the irregular expenditure and consider instituting disciplinary action, including criminal action against Mr. Elias Ntefang; and
  • c) Recover irregular expenditure from the person liable for that expenditure, unless the expenditure is, after investigation referred in paragraph 7.1.6.2 above, certified by council as irrecoverable and written off by council.

Anonymous versus Dawid Kruiper Municipality

I investigated allegations that a certain Mr. W Philander was appointed by the Mier Municipality (the Mier Municipality has now amalgamated with //Khara Hais Municipality to form the Dawid Kruiper Municipality) to the post of Revenue Clerk even though he did not meet the requirements of the position and that the appointment of Ms Junees Vosloo was made to the same office without the post being advertised or interviews being held by the Dawid Kruiper Municipality.

Issues investigated, and findings:

  • a) Whether the appointment of Mr Philander as a Revenue Clerk at the Municipality was improper, and if so, did the conduct of the Municipality constitute improper conduct or maladministration? (Allegation substantiated)
  • b) Whether the appointment of Ms Vosloo as an Intern at the Municipality was improper, and if so, did the conduct of the Municipality constitute improper conduct or maladministration? (Allegation not substantiated)

The appropriate remedial action I am taking to correct improper conduct or maladministration, while addressing the disciplinary deficiencies in the Municipality is the following:

  • a) The Municipal Council should within 30 days of the receipt of this report, take disciplinary action against the then Acting Municipal Manager, Mr Ivan van Wyk as he was responsible and accountable for the appointment of Mr Philander who did not meet the requirements for the position of Revenue Clerk.
  • b) The Municipal Manager must take appropriate steps to correct the improper appointment of Mr Philander to the position of Revenue Clerk.

Masibi versus the City of Tshwane Metropolitan Municipality

I investigated alleged maladministration that is said to have occurred during 2009 and 2010 by the City of Tshwane Metropolitan Municipality (COT) regarding the transfer, non-payment of salary and disciplinary enquiry of one of its employees, Ms Mamotseki Jeanette Masibi. The Complaint was an ambulance practitioner with employment number 16412/4.

The complaint was lodged with the Public Protector on 03 June 2014. The Complainant was previously employed by the COT until her resignation in May 2015. She alleged that during 2009 and 2010, she suffered improper prejudice as a result of unfair labour practices.

Issues investigated, and findings:

  • a) Whether the COT improperly transferred the Complainant from Rosslyn Fire Station to Wonderboom Fire Station? (Allegation substantiated)
  • b) Whether the COT improperly withheld the Complainant’s salary between 17 February 2010 and 21 November 2010? (Allegation substantiated)
  • c) Whether the conduct of the COT improperly prejudiced the Complainant and, if so, what it would take to place the Complainant in a position as close as possible to where she would have been had the COT acted properly? (Allegation substantiated)

I am taking the following appropriate remedial action:

  • a) The COT must, within fourteen (14) days of the date on which this report is issued, tender a written apology to the Com 8 thirty (30) days of date on which this report is issued, submit a copy of the said written apology to the Public Protector.
  • b) The COT must, within thirty (30) days of the date on which this report is issued, pay the Complainant the salary entitlement including benefits on the salary scale that the Complainant was appointed on for the period from 17 February 2010 to 21 November 2010, with the applicable interest rate calculated at 15.5% per annum from 17 February 2010 to date of payment. The COT must, within fourteen (14) days of the said payment submit proof of same to the Public Protector.
  • c) The COT has confirmed that the disciplinary record of the Complainant related to the disciplinary charges pertaining to this matter have been expunged due to the fact that they only remained on record for a period of six months after the outcome of the disciplinary hearing on 17 November 2011. The COT is directed not to communicate the existence of the said disciplinary record to any third parties;
  • d) An Action Plan indicating how the remedial action will be implemented is to be provided to the Public Protector, within fourteen (14) days of the issuing of this report.

Mr. Selepe and others versus the South African Energy Corporation (NECSA)

I investigated allegations of maladministration levelled against the South African Energy Corporation (NECSA) by a certain Mr. Manyanyata Selepe and others. A lot of the complainants were former employees of NECSA in Pelindaba while the rest were sub-contractors who previously did business with the corporation.

In the main, Mr. Selepe and others complained that they suffered adverse medical conditions as a result of working for NECSA. They alleged that while employed there, they were not informed about the possible risk of radiation contamination, they also alleged that they were not provided with training on safety and protective clothing and they further alleged that, in some cases, they were not legally authorized to work in radiation areas yet they were instructed to deal with so-called “ clean ups”.

In addition, the complainants alleged that they were exposed to radiation and hazardous chemicals during their employment at NECSA; and they said that they initially raised their grievances with NECSA in 2004 but the issues remained unresolved. In a memorandum dated 24 January 2007 to the then NECSA Chief Executive, Dr. Rob Adams, they demanded compensation for affected employees and for those who had died as a result of occupational related diseases. They also requested access to NECSA medical facilities for proper medical tests in the presence of an independent medical officer and for the release of medical files of affected employees.

In 2007, the complainants approached the Earth Life Africa (ELA), an environmental and antinuclear organization, for assistance. However, ELA discontinued its services due to limited funds. Between 2007 and 2010, the complaints remained unresolved. On 25 May 2010, ELA approached this office on behalf of the complainants.

Issues investigated, and findings:

  • a) Whether the complainants suffered adverse medical conditions as a result of their employment with NECSA and did this cause them to suffer improper prejudice? (Allegation not substantiated)
  • b) Whether due processes were followed by NECSA in the way the Compensation Fund claims were dealt with and does this constitute maladministration? (Allegation substantiated)
  • c) Whether due processes were followed by the Compensation Fund in dealing with the claims lodged and does this constitution maladministration? (Allegation not substantiated)
  • d) Whether the Compensation Fund properly adjudicated on the fatality claim of one of the complainants, a certain Mr. Victor Motha, who died as a result of what a doctor referred to as “the collapse of the lungs due to the inhalation of fluoride gas”, and did his family suffer any improper prejudice? (Allegation not substantiated)
  • e) And whether there was a failure by NECSA to conduct a proper investigation into the death of Mr. Motha? (Allegation substantiated).

Having taken note of NECSA’s commitment to comply, I take the following appropriate remedial action:

  • a) The National Nuclear Regulator (NNR) and NECSA must within 60 days of this report subject the employees identified in the report of Mzansi Energy Solutions and Innovations (PTY) (MZESI) – which was appointed by the NNR to conduct specialist medical examinations and tests on its behalf between September and November 2016 at various private hospitals in Gauteng – for further evaluation as recommended by (MZESI).
  • b) NECSA must provide all employees with a copy of their exit medical certificate and the certificates should also be placed in their files.
  • c) In terms of the Personal Protective Equipment (PPE) issued and training on the use thereof, there should be strict compliance by managers. This should be audited annually.
  • d) All sub-contractors must be subjected to on-going training on all risk factors within the scope of their employment.
  • e) NECSA should within 30 days of this report submit to the Compensation Fund all outstanding information and documents at their disposal relating to the complainants’ claims.
  • f) NECSA should issue a written apology to Mr. Motha’s family for failure to conduct a proper investigation into his death.
  • g) NECSA must within three months from the date of this report consider paying the Motha family an ex gratia payment amount determined as reasonable consolatory payment for the frustration and distress they have suffered as a result of failure by NECSA to conduct a proper investigation into the death of Mr. Motha.

Bokazi versus the University of Limpopo

I investigated allegations of maladministration by the University of Limpopo, relating to the rolling out and the implementation of an unaccredited Bachelor of Medicine curriculum at its school of medicine in 2016. 10 I received a complaint from Professor AJ Mbokazi who is the Director of the School of Medicine at the University on 30 June 2016, requesting me to intervene and investigate what he perceived as maladministration and subversion of tender processes by the management of the University.

Issues investigated, and findings:

  • a) Whether the University followed proper procurement processes when they appointed Dinamik Institute to formulate or draw up the medical programme? (allegation not substantiated)
  • b) Whether there was improper relationship between Prof Mbambo-Kekana and the Director of Dinamik Institute Ms Molatoli which could have influenced the appointment thereof? (Allegation substantiated)
  • c) Whether the University improperly replaced, introduced and implemented an altered curriculum at the University School of Medicine which is not accredited by HPCSA and CHE which was formulated by a person who does not have a MBChB degree? (Allegation substantiated)
  • d) Whether the Vice Chancellor allowed the MBChB programme to be managed by the Executive Dean of the Faculty who does not have an MBChB degree? (Allegation not substantiated)
  • e) Whether the HPCSA failed to exercise its regulatory and oversight role in this matter? (Allegation not substantiated)
  • f) If the answer to any of the above is in the affirmative, did the Complainant and affected students suffer any improper prejudice as envisaged in section 6(4)(a)(v) of the Public Protector Act as a result of this alleged maladministration by the University of Limpopo? (Allegation substantiated)

The remedial action I am taking is as follows: The Vice Chancellor of the University of Limpopo is to take effective and appropriate steps to ensure:

  • a) That an MBChB programme committee be formally constituted as part of the academic decision-making structure of the University.
  • b) That the previous programme coordinators be redeployed elsewhere in the University and be replaced with an appropriately qualified medical specialists.
  • c) The University must within 30 days of the issue of this report ensure that all its officials involved in Supply Chain Management are properly familiarised with the University’s Procurement Policy and Treasury Guidelines on Procurement procedures.
  • d) In light of that which has transpired and to prevent a recurrence, the University should in future consider employing an Executive Dean of the faculty of Health Sciences who is a qualified Medical Doctor.
  • e) The University must within 60 days of the release of the report, develop a policy relating to the declaration of conflicts of interest amongst all of its staff members for each financial year.
  • f) The University must within 30 days of the issue of this report reimburse the Complainant all the determinable financial expenses he incurred through legal, travelling, accommodation, and other costs while he was pursuing this case. The University must further issue and publish on its website an apology to the Complainant for subjecting him to an unjustifiable suspension from his position as the Director of the School of Medicine.
  • g) The University must also ensure that all the long and short term conditions of accreditation of this MBChB programme as spelt out by CHE are addressed within the stipulated time frames and evidence supplied to CHE.

The Chairperson of the Council of University of Limpopo is to take effective and appropriate steps to ensure:

  • a) The Council of the University must within 30 days of the issue of this report, take appropriate disciplinary steps to ensure that action is taken against all its officials who are responsible for exposing the University to de-accreditation of its MBChB programme, financial risks in violation of its own Supply Chain and Procurement Processes and Procedures.
  • b) That it be ensured that the pre-clinical and clinical lecturing staff are effectively involved in the development and the implementation of the MBChB curriculum with the ability to participate in decisions about the programme and its curriculum through the MBChB programme committee.
  • c) That the Memorandum of Understanding (MoU) with the Provincial Department of Health in Limpopo be concluded before the accreditation of the programme can be finalised as a matter of urgency in order to ensure the formalisation of joint appointments of clinical training staff.
  • d) Given the extraordinary nature of this matter, CHE must endeavour to have a new programme evaluated as soon as reasonably possible after it has been received, which will enable the University to reintroduce the programme, should the programme be accredited by the CHE.
  • e) The University must not enrol new students into the programme that is not approved by HPCSA and which is also not yet accredited by CHE.

The Head of the Directorate of Priority Crimes Investigations (DPCI/Hawks)

  • a) The DPCI must within 30 days of receipt of the final report register and further investigate a criminal case docket relating to acts of possible Corruption, Money 12 Laundering or Racketeering between the University and Dinamik Institute since the two started to contract with each other.

Anonymous versus merSETA

I investigated allegations of maladministration and improper conduct in connection with alleged victimisation and subjection to occupational detriment of employees on account of them having made protected disclosures in connection with the irregular appointment of service providers and personnel, irregular disposal of the Manufacturing Engineering Related Services Sector Education and Training Authority’s (merSETA) movable assets, irregular, fruitless and wasteful expenditure, as well as failure by the Chief Executive Officer of the merSETA, Dr. Raymond Andrew Patel to institute disciplinary proceedings against an employee who is alleged to have contravened the merSETA’s Code of Conduct Policy.

The first Complainant is a 46 year old married male and a sole bread winner with 3 dependent children. One of the children has already completed her tertiary education, while the other is still in Primary School and the last one is in Pre-School. The second Complainant is a 46 year old married male with 4 dependent children. One of the children is in a tertiary institution, while the rest are in Primary School.

Issues investigated, and findings:

  • a) Whether the CEO subjected the Complainants to occupational detriment on account of them having made disclosures to a member of the merSETA Board of Directors and the former CFO respectively, and if so, whether his conduct constitute maladministration or improper conduct? (Allegation not substantiated)
  • b) Whether the CEO improperly influenced and authorised the appointment of certain service providers to render services at the merSETA contrary to the legislation and prescripts regulating procurement processes in the public sector, and if so, whether his conduct constitute maladministration or improper conduct? (No finding made as this aspect is a subject of a Hawks investigation)
  • c) Whether the CEO improperly authorised the appointment of personnel in positions for which they allegedly possessed no relevant qualifications and/or experience, and if so, whether his conduct constitute maladministration or improper conduct? (Allegation not substantiated)
  • d) Whether the CEO improperly influenced the disposal of the merSETA’s movable asset contrary to the legislation and prescripts regulating disposal of assets in the public sector, and if so, whether his conduct constitute maladministration or improper conduct? (Allegation not substantiated)
  • e) Whether the CEO caused the merSETA to incur irregular, fruitless and wasteful expenditure by commissioning a disciplinary enquiry against the second Complainant, which did not yield results and was later aborted, and if so, whether his conduct constitute maladministration or improper conduct? (Allegation substantiated)
  • f) Whether the CEO failed to institute disciplinary action against an employee (herein referred to as Mr. X to protect his identity and with a view to avert infringing on Mr. X’s rights), who had contravened the merSETA Code of 13 Conduct, and if so, whether his conduct constitute maladministration or improper conduct? (Allegation substantiated)
  • g) Whether the Complainants were improperly prejudiced by the CEO’s conduct as envisaged in section 182(1)(a) of the Constitution of the Republic of South Africa Act 106 of 1996 (the Constitution) and section 6(4)(a)(v) of the Public Protector Act, 1994 (PPA)? (Allegation not substantiated)

I take the following remedial action: The Minister of Higher Education and Training must:

  • a) Take cognisance of the findings regarding maladministration and improper conduct by the CEO, Dr Raymond Andrew Patel mentioned in the report.
  • b) Ensure that the Board considers the acts of maladministration, financial misconduct and improper conduct referred to in the report and take appropriate disciplinary action against the CEO, Dr. Raymond Andrew Patel in accordance with Treasury Regulation 4.1.3; and
  • c) Include in his/her oversight responsibilities with regard to merSETA, as a National State Entity, the monitoring of implementation of remedial action taken in pursuit of the findings in terms of the powers conferred under section 182(2) (c) of the Constitution.

The merSETA Board of Directors must:

  • a) Take cognisance of the findings of maladministration and improper conduct by the CEO, Dr. Raymond Andrew Patel and ensure that such action is not repeated;
  • b) Take appropriate disciplinary action against the CEO, Dr. Raymond Andrew Patel, within 60 days of publication of this report, in accordance with Treasury Regulation 4.1.3, for maladministration, act of financial misconduct and improper conduct incurred;
  • c) The Board evaluate the effectiveness of merSETA’s internal controls on Human Resource Management processes to identify deficiencies with a view to take corrective action to prevent a recurrence of the improprieties referred in the report.
  • d) Ensure that training is provided to merSETA staff, including those in authority, regarding a proper response to whistle-blowing and the protection of whistleblowers to prevent the recurrence of the improprieties referred to in the report.

The Chief Executive Officer must:

  • a) Take cognisance of the findings of maladministration and improper conduct identified in the report and ensure that such conduct is not repeated; 14
  • b) Ensure that that merSETA Recruitment Policy is amended to prescribe the process to be followed when a suitably competent candidate for position(s) advertised internally could not be identified.

Masoga vs Limpopo Provincial Legislature

I investigated allegations that the Deputy Speaker of the Limpopo Provincial Legislature, Honourable Lehlogonolo Masoga, incurred an exorbitant mobile telephone bill on an official trip to the United States of America (USA) in 2014. This is an own initiative investigation conducted after my office came across an article in the City Press newspaper of 29 March 2015 on allegations against the Deputy Speaker.

The article alleged that the Deputy Speaker incurred a bill of up to R125 000.00 whilst on an official trip in the USA in August 2014. It alleged further that the Manager of the Legislature’s Supply Chain Management Unit, Ms Maite Toona, was suspended because she questioned the bill.

The following issues were identified and investigated:

  • a) Whether the Deputy Speaker incurred an exorbitant or unreasonable mobile telephone bill whilst on an official trip in the USA in August 2014? (Allegation substantiated)
  • b) Whether the amount spent by the Deputy Speaker on his mobile telephone bill was exorbitant or unreasonable in the circumstances? (Allegation substantiated)
  • c) Whether the Manager of the Legislature’s Supply Chain Management Unit, Ms Maite Toona, was suspended as a result of querying the Deputy Speaker’s mobile telephone bill (Allegation not substantiated)

I took the following remedial action:

  • a) The Speaker of the Legislature must, within 60 working days from the date of this report, ensure that the Legislature review section 6.5 and 6.6 of the Policy, specifically to provide for the total allowance on combined mobile telephone (voice), the mobile tablet and laptop (data) for members of the Legislature per official international trip; and
  • b) The Acting Secretary of the Legislature must, in consultation with the Speaker of the Legislature, take appropriate action and recover a reasonable portion of the amount spent from the Deputy Speaker incurred whilst in the USA, within 60 working days from the date of this report.

Magaxa versus Zille

I investigated allegations of a possible violation of the Executive Ethics Code by the Premier of the Western Cape Province, Honourable Helen Zille. The complaint was lodged with my office on 07 July 2017 by Honourable K Magaxa, Member of the African National Congress and Western Cape Provincial Legislature in terms of the Executive Members’ Ethics Act. 15

In the main, the Complainant alleged that the Premier violated sections 2.1(c) and (d); and 2.3(c) of the Code by conducting herself as follows:

  • a) She tweeted, amongst others, that “for those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport, infrastructure, piped water etc.” The tweet has brought back a lot of pain and suffering to victims of apartheid and colonialism in South Africa. She celebrated the oppression, exploitation, racism and poverty which are the direct results of the legacy of colonialism;
  • b) She failed to act in good faith and in the best interest of good governance by making such statements. The Premier’s action did not comply with what was expected from a person holding the office of the Premier of a province;
  • c) She also failed to act in a manner that is consistent with the integrity of her office;
  • d) She violated the principles of the Constitution and divided the society on racial grounds; and
  • e) By undermining South Africans with her personal beliefs on colonialism she failed to uphold her oath of office which requires the Premier to hold office with honour and dignity.

The following were issues considered for investigation:

  • a) Whether the Premier of the Western Cape Provincial Government, Honourable Helen Zille, allegedly made the tweets on colonialism in the media? (Allegation substantiated)
  • b) Whether the alleged tweets on colonialism made by the Premier of the Western Cape Provincial Government, Honourable Helen Zille, violated the provisions of the Executive Ethics Code? (Allegation substantiated)

In the light of the above findings I am directing the following remedial action:

  • a) The Speaker of the Western Cape Provincial Legislature (Speaker) must, within 30 working days from the date of the report, table it before the Western Cape Provincial Legislature for it to take appropriate action to hold the Premier accountable as contemplated in sections 114(2), 133(2) & (3)(a) and 136(1) & (2)(b) of the Constitution.

info@probonomatters.co.za

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