Address by Public Protector Adv. Busisiwe Mkhwebane during a media briefing held in Pretoria on Thursday, March 28, 2019.
Address by Public Protector Adv. Busisiwe Mkhwebane during a media briefing held in Pretoria on Thursday, March 28, 2019.
Programme Director, Mr. Oupa Segalwe;
Deputy Public Protector, Adv. Kevin Malunga;
Chief Executive Officer, Mr. Vussy Mahlangu;
Chief Operations Officer, Ms. Basani Baloyi;
Executive Manager: Administrative Justice and Service Delivery, Ms. Ponatshego Mogaladi;
Executive Manager: Provincial Investigation and Integration, Ms. Nelisiwe Thejane;
Executive Manager: Complaints and Stakeholder Management, Ms. Nthoriseng Motsitsi,
Acting Executive Manager: Corporate Services, Mr. Futana Tebele;
Chief of Staff, Mr. Sibusiso Nyembe;
Members of the media,
Ladies and gentleman;
Thank you for joining us on our fifth and last media briefing for the 2018/19 financial year.
We meet at a time when the Public Protector South Africa family is in mourning, having just lost one of our longest-serving staff members, Ms. Cathy van Rooyen. We woke up, on Monday, to the devastating news of her passing.
Many of you may have crossed paths with her in your visits to this office as she was stationed at our front desk and therefore the first point of contact for all our visitors, including members of the public visiting to lodge their service or conduct failure complaints.
Her departure follows a courageous battle with a dread disease and marked the end of her 18-year spell in the service of the people of South Africa. On behalf of the Public Protector South Africa community, I wish to convey our deepest condolences to her family, friends and colleagues.
Your loss is our loss. Rest assured of our unwavering support during this difficult time. She will be sorely missed and we trust that her gentle soul will find peaceful rest for eternity.
Ladies and gentlemen, we have, in the last 12 months, made major inroads in pursuit of the objectives of our strategic blueprint, the Vision 2023, the essence of which is to take the services of this institution to the grassroots.
As such, I’m pleased to report that, working within the little resources at our disposal, the team and I reached out to many remote communities; engaged these communities in their mother tongues; expanded our reach; and leveraged stakeholder relations through mutually beneficial formal agreements.
We did not stop there. We put shoulder to the wheel to persuade organs of state to establish internal complaints resolution mechanisms; we empowered many to be aware of and understand their rights and we remain on course to inspire people to be their own liberators.
Of greater relevance to today’s briefing, we continue to project this office as a safe haven for the poor and this will be demonstrated in most of investigation reports I will issue shortly. Most importantly, these are mostly cases that arose more than two years ago and therefore part of concerted efforts to dispose of our case backlog.
It should be noted that in most of these complaints, which were reported to my office more than two years after the cause of action had arisen, the exceptional circumstances include the nature of the complaint and the seriousness of the allegations; whether the outcome could rectify systemic problems in state administration; whether I would be able to successfully investigate the matter with due consideration to the availability of evidence and / or records relating to the incident(s); whether there are any competent alternative remedies available to the Complainant and the overall impact of the investigation.
In addition, I take into account the provisions of section 195 of the Constitution. Whether the circumstances are special or not depends on the merits of each case.
All these find expression in the eight pillars of our Vision, which informs every little thing that happens in all our 19 offices across the country. Finer details of all these modest victories will form part of the 2018/19 Annual Report, which we will soon prepare for tabling in the 6th Parliament, in the second half of this calendar year.
As you will soon see in the Annual Performance Plan that we are wrapping up for presentation also to the next Parliament, we remain focused on the effective implementation of this Vision.
We still believe the Vision is the plan that will help us live up to the mammoth task of strengthening constitutional democracy through the investigation, reporting on and remedying any alleged or suspected improper conduct in state affairs while being accessible to all persons and communities.
As most of you may be aware, I am four months into the job as President of the African Ombudsman and Mediators Association (AOMA) and have been Board Chairperson of its subsidiary, the African Ombudsman Research Centre, which is based at the University of KwaZulu-Natal, since I became Public Protector.
For the benefit of the uninitiated, AOMA is an umbrella body of 44 Public Protector-like institutions in the continent. AORC on the other hand helps Ombudsman institutions in the continent with research, information-sharing, capacity-building and advocacy.
In that capacity, I hosted, earlier this month, my peers from several African countries and their staff for a critical training course on alternative dispute resolution mechanisms.
The training was led by UKZN School of Law's Prof. David McQuoid-Mason, a leading expert and scholar in mediation who has conducted training on this specialised field domestically as well as in Uganda, Zimbabwe, Ghana, Fiji and Italy, among other jurisdictions.
Funded and coordinated by the International Ombudsman Institute (IOI) in collaboration with AORC and attended by among others former IOI President and my Namibian counterpart, Adv. John Walters; the IOI Secretary-General and my Austrian equal, Mr. Günther Kräuter; and the IOI Africa President and Zambian Public Protector, Ms. Caroline Sokoni, the training was great success.
I have no doubt in my mind that the skills acquired during the training will go a long way in helping Africa realise the aspirations spelt out in the continental development plan, Agenda 2063, particularly those aspects of the plan that have to do with good governance, democracy, respect for human rights, justice and the rule of law, as well as peace and security. We want to play a meaningful role in African efforts to silence the guns in the continent by next year.
Recently, we saw worrying episodes of civil unrest in a number of African countries. In the one country, a disputed elections outcome gave rise to the turbulence whereas in another country the situation was reportedly prompted by issues relating to the spiralling cost of living and alleged human rights violations.
As AOMA – a body that already enjoys an observer status within the African Union and is gunning for the same status at the level of the United Nations – we are well equipped to step in and bring the disagreeing parties to the table for amicable solutions that guarantees peace, safety and security for citizens. We would like to stress our availability to help in such stand-offs.
Let me move, without any more delays, to the business of the day. I called this media briefing to make public my reports following a number of investigations in line with section 182(5) of the Constitution, which makes it mandatory for me to make any report issued by me public unless exceptional circumstances such as risks to national security require that such a report be kept confidential.
I hereby confirm that no such risks exist in the case of the following reports, whose contents I am making public today:
- A closing report on an investigation into allegations of improper conduct and maladministration by the former Companies and Intellectual Property Registration Office (CIPRO) (that together with another entity constituted the Companies and Intellectual Property Commission (CIPC) with the advent of the new Companies Act of 2008) relating to the implementation of the recommendations of an Inspectors’ Report, issued in terms of section 261 of the Companies Act, 1973.
- Closing report on an investigation into allegations of maladministration and improper conduct by the Minister of Police, in the provision of SAPS VIP Protection Services to Dr Nkosazana Dlamini-Zuma after the expiry of her term of office as Chairperson of the African Union in October 2016.
- Report on an investigation into allegations of unfair and improper conduct by the State Information Technology Agency (SITA) relating to the structuring of the pensionable portion of the remuneration package of Mr G Norton.
- Report on an investigation into allegations of maladministration by the Free State Department of Agriculture and Rural Development (DARD), and the Department of Agriculture, Forestry and Fisheries (DAFF) relating to its handling of an outbreak of Brucellosis on the farm of Mrs Ronél Behrens.
- Report on an investigation into allegations of improper conduct and maladministration by the Eastern Cape Department of Health (the Department) pertaining to the procurement of cleaning services for the Frontier Hospital, during the period 2007 to 2013.
- Report on an investigation into allegations of improper conduct and maladministration by the Eastern Cape Department of Rural Development and Agrarian Reform (the Department) pertaining to the placement of learners in order for them to complete the practical component of a Learnership Programme, and non-payment for services rendered in this regard.
- Report on an investigation into allegations of an undue delay or failure by the Road Accident Fund (the RAF) to reimburse Mr Zah Ndlovu for expenses relating to the burial of victims of motor vehicle accidents.
- Report an investigation into allegations of improper conduct and legislative non-compliance by the KwaZulu-Natal Provincial Department of Health (the Department) in respect of KwaZulu-Natal Government Mortuaries (Mortuaries) resulting in substandard service delivery at these Mortuaries.
- Report on an investigation into a complaint lodged by members of the Greater Brakpan Taxi Association (the GBTA) and the Johannesburg Benoni Brakpan Springs Secunda Witbank Taxi Association (the JBBSSWTA) relating to an alleged failure by the Gauteng Departments of Roads and Transport and (the GDRT) and Community Safety (GDoCS) and the South African Police Service (SAPS) to enforce the law relating to the operations of minibuses/ midibuses (taxis).
- Report on an investigation into the allegations of maladministration, abuse of power and improper conduct by the former Executive Officer (EO) of the Financial Services Board (FSB), Adv. D P Tshidi, as well as systemic corporate governance deficiencies at the FSB.
- Our main and anchor report for the briefing will be on a systemic investigation into the illegal conversion of goods-carrying Toyota quantum panel vans into passenger-carrying minibus taxis to transport members of the public.
My office was approached by Messrs L J Katikati, J Rwayi and W Ngalo in December 2012, with a complaint against the Department of Trade and Industry (DTI). It appeared from information obtained relating to the complaint that they were members of the Cape Town Harbour Fisherman Co-operative Limited, which was established in 1994.
In 1997, twenty five (25) co-operatives comprising three thousand six hundred (3600) members, formed the South African Commercial Fishermen’s Corporation (SACFC) and the South African Commercial Fishermen’s Holdings (SACFH). These entities were incorporated as companies in terms of the 1973 Companies Act, on 31 January 1997. Mr Katikati was the Chairperson of the SACFH.
According to the complainants, the former Minister of Trade and Industry, Mr M Mphalwa, appointed inspectors in terms of the 1973 Companies Act on 2 February 2006, to investigate the affairs of the SACFH and SACFC. The report on the investigation (Inspectors’ Report) was issued in 2008 (more than 10 years ago).
The Inspector’s Report recommended inter alia that “anyone found guilty should be prosecuted”. However, no prosecution was ever instituted. The essence of their complaint was that the DTI (more in particular CIPRO) had failed to implement the recommendations of the Inspectors’ Report. The Complainants alleged that the said failure was improper, constitutes maladministration and resulted in them being prejudiced.
I therefore investigated whether the Minister of Trade and Industry, the DTI and/or CIPRO failed to ensure implementation of the Inspector’s Report, and if so; whether such failure constitutes conduct that was improper, or resulted in prejudice, as contemplated by section 182(1) of the Constitution and/or maladministration as contemplated in section 6(4)(i) of the Public Protector Act.
I have decided to close this matter for the following reasons:
- The period within which the liquidation proceedings in respect of SACFH and SACFC as instructed by the former Minister of Trade and Industry in terms of section 262(2)(a) of the 1973 Companies Act had expired years ago, due to the advent of the 2008 Companies Act in 2008.
- Both the SACFC and SACFH had dissolved and do not exist as registered companies in terms of the Companies Act 2008.
- No rational remedial action to address the failure on the part of CIPRO in 2009 to initiate the liquidation proceedings in the name of the companies can be taken due to the lapse of time, the substitution of the 1973 Companies Act by the 2008 Companies Act; and CIPRO by CIPC.
- There is no substantive and verifiable evidence of prejudice suffered by the SACFC and SACFH.
I received a complaint from the DA Shadow Minister of Police Mr Zakhele Mbhele in April 2017, wherein he alleged maladministration and improper conduct on the part of the former Minister of Police, Mr Fikile Mbalula. In the main, Mr. Mbhele alleged:
- That the media reported during April 2017 that Dr Dlamini-Zuma, despite being a private person who held no high office, was enjoying the protection of the South African Police Service’s (SAPS) VIP Protection Services due to the alleged security threats against her;
- That spurious security threats were being used by the former Minister of Police as a justification to afford Dr Dlamini-Zuma SAPS VIP Protection Services, which she would not otherwise have qualified for and the former Minister of Police had failed to adequately and transparently make clear the basis of his decision to offer Dr Dlamini-Zuma VIP Protection Services; and
- That policing resources and public funds were being used, and possibly abused to protect an ordinary citizen, when South African citizens face threats from criminals in their homes and on the streets on a daily basis.
On analysis of the complaint, information and documents received during the preliminary enquiry, I decided to investigate whether the Minister of Police improperly provided SAPS VIP Protection Services to Dr. Dlamini-Zuma, and if so, whether such conduct constituted improper conduct and maladministration?
Following an investigation, I arrived at the following observations and conclusions. Dr Dlamini-Zuma’s protection by Presidential Protection Services (PPS), as African Union Chairperson, was in accordance with the practice prescribed by DIRCO, of according Executive Protection to dignitaries of her calibre.
The protection by PPS was suitably continued after the expiry of the term of office of Dr Dlamini-Zuma, due to the threats identified by the State Security Agency (SSA), which also manifested during the assessment review conducted by Crime Intelligence.
Dr Dlamini-Zuma was recognised in a document called Risk Management Support System prescripts (RIMAS), which is classified as Top Secret, as a person entitled to be accorded SAPS VIP Protection, immediately after the expiry of her term of office as African Union Chairperson, and during the hand over from PPS to Protection and Security Services (PSS) after the conducting of the threat and risk review, when the level of risk had scaled down up to the time she became a Minister for Planning, Monitoring and Evaluation.
Having considered the complaint, the relevant provisions of the RIMAS and other prescripts relied upon in providing Dr Dlamini-Zuma with the relevant PPS and PSS, I could not find any reason to conclude that Dr Dlamini-Zuma was improperly accorded VIP Protection Services by the Minister of Police.
The constitutional principle of separation of powers was reiterated by Mogoeng CJ at paragraph 91 in The Economic Freedom Fighters v The Speaker of the National Assembly and Others and Democratic Alliance v The Speaker of the National Assembly and Others (CCT 143/15 and CCT 171/15), quoting from the court case in the Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96)  ZA CC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) (6 September 1996) that:
“The principle of separation of powers, on the one hand, recognises the functional independence of branches of government. On the other hand, the principles of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another...”
Where the state institution has taken action based on its practise and prescripts within its sphere of administration, it would not be prudent for the Public Protector to interfere with the process concerned, unless where improper conduct or maladministration, through an act of commission or omission, manifests.
Having regard to the evidence received, and for the reasons advanced herein above, I am unable to pursue the matter any further and am inclined to conclude that the allegations of improper provision of VIP Protection Service to Dr Dlamini-Zuma are not substantiated. I have thus decided to close the investigation.
The second matter relates to a complaint by one Mr G Norton, a now retired employee of the State Information Technology Agency (SITA). He complained that when SITA amended its remuneration structure in 2004, and converted his salary to a total guaranteed remuneration package (TGP), he and other employees were prejudiced because SITA incorrectly applied the conversion and the restructuring of the salary packages.
He also complained that when SITA established its own retirement fund in 2004, members of the Government Employees Pension Fund (GEPF) were excluded from the opportunity to join the Alexander Forbes Retirement Fund.
He further complained that when SITA reviewed its conditions of employment in 2008, which allowed staff members to structure their pensionable portion of their TGP to between 70% and 100%, the Complainant and other employees were not allowed to increase the pensionable portion of their TGP in accordance with the relevant provisions of SITA’s conditions of service, to their disadvantage.
I found that the allegation that SITA unfairly or improperly failed to comply with its statutory or contractual obligations to allow the Complainant to transfer the actuarial value of his pension benefits in the GEPF to the SRF was unsubstantiated
The allegation that SITA did not allow the Complainant to increase the pensionable percentage of his TGP (total guaranteed remuneration package) with effect from 1 September 2009 from 56.61% to the minimum of 70% provided for in the amended 2008 SITA conditions of service is substantiated.
The allegation that the Complainant’s pensionable emoluments in the GEPF were computed at a lower pensionable salary of 56.61 % of his TGP instead of the 70% provided for in his conditions of service, is substantiated.
As remedial action, I direct the Chief Executive Officer (CEO) of SITA to engage the CEO of the GPAA to facilitate the retrospective adjustment of the Complainant’s pensionable emoluments in the GEPF to 70% of his TGP with effect from 1 September 2009.
The CEO of SITA, in consultation with the CEO of the GPAA must commission a full audit to determine the financial shortfall in employer and employee contributions on behalf of the Complainant to the GEPF based on the retrospective adjustment of the Complainant’s pensionable emoluments in the GEPF to 70% of his TGP to 1 September 2009.
As a financial remedy to the prejudice caused to the Complainant, the SITA must contribute to the GEPF, 50% of the shortfall in pension contributions needed to adjust the Complainant’s pensionable emoluments retrospectively to 1 September 2009, provided that the Complainant accepts liability for the balance of the shortfall in contributions, which may be deducted from any additional gratuity amount accruing to the Complainant.
I investigated allegations of maladministration by the Free State Department of Agriculture and Rural Development (DARD), and the Department of Agriculture, Forestry and Fisheries (DAFF) relating to its handling of an outbreak of Brucellosis on the farm of Mrs Ronél Behrens.
Brucellosis is a highly contagious disease caused by a bacterium called Brucella abortus. Clinically, the disease is characterised by abortions in the later stages of pregnancy, retained placenta and decreased fertility. Humans are also susceptible, by drinking unpasteurised, unboiled milk, or eating undercooked meat of infected animals. The disease in humans is known as undulant fever.
A product, RB51, is a vaccine registered in terms of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947, as a stock remedy to be used for the prevention and / or control of Brucellosis. The vaccine was registered in 2002. The original registration holder was Schering Plough and the registration was later transferred to Intervet South Africa (now called MSD Animal Health).
Mrs Behrens, and her husband, Cobus, are dairy farmers on the farm, Goedemoed, in the district of Ventersburg, Free State. The herd, known as Waterbron Jerseys, was inherited from the Complainant’s father, Mr J B Heyns, in the 1990’s. Since Mr Heyns took over the herd in 1987 and officially registered it, the herd itself has won numerous prizes, which included being voted, on numerous occasions, one of the top ten Jersey herds in South Africa.
Some of the animals were also exhibited on various dairy shows where numerous bronze, silver and gold awards were won by them. Fifteen (15) Meester Suiwel Boer awards were won by the Complainant between 1994 and 2010. All the milk produced on the farm was sold to Bandini Cheese, where it was used to make Mozzarella cheese.
In the main, the complaint was that:
- The Complainant’s animals were infected with Brucellosis despite the fact that they were vaccinated by the vaccine registered and prescribed by the DAFF;
- The DAFF unduly delayed and / or failed to produce to the Complainant a report on its investigation into the suspected lack of efficiency of the RB51 vaccine and;
- That the Free State DARD failed to implement control measures in terms of the Animal Diseases Act, 1984, on her farm after the outbreak was initially reported to it in 2010; and
- That Brucellosis is a state-controlled disease in terms of the Animal Diseases Act, 1984, and that the State is therefore liable to compensate the Complainant for her damages.
I investigated the allegation that the vaccine, RB51, was registered in South Africa without following due process; whether there was enough evidence before the DAFF to cancel the registration of the vaccine; and whether the department is liable to compensate the Complainant for damages in terms of section 19 of the Animal Diseases Act, as the Director: Animal Health did not give an instruction for the slaughtering of the animals as a control measure, as envisioned by the Act.
The allegation that the Free State DARD, specifically Dr Louis van Rooyen failed to implement control measures stipulated by the Animal Diseases Act, 1984 in 2010 when the outbreak was reported is substantiated. The allegation that the Director: Animal Health failed to intervene on the Complainant’s farm when the outbreak was brought to her attention in December 2010 is also substantiated.
The allegation that the Registrar failed to follow due process in terms of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, is substantiated. The allegation that the Registrar had a duty to act on the reports about the suspected lack of efficiency of the RB51 vaccine and improperly failed to do so is also substantiated.
The allegation that the Complainant suffered prejudice as a result of the maladministration of the Free State DARD and the Director: Animal Health is substantiated.
In terms of remedial action, I direct the Director-General of DAFF, among other things, to issue a written apology to the Complainant, apologising for the manner in which the Free State DARD and the DAFF handled the outbreak of Brucellosis on her farm. This must happen within twenty – one business days from date of this report.
The DG must also, within three months from date of this report, and in consultation with the Minister and the Director: Animal Health, make an offer to the Complainant which she deems reasonable in the circumstances as an ex gratia payment for the inconvenience, distress and frustration suffered by the Complainant as a result of the maladministration.
Upon acceptance of the offer by the Complainant, the DG must pay the amount agreed upon by the parties to the Complainant within sixty (60) working days.
The Director responsible for Animal Health must, among other things, facilitate the process with the Department of Health to test the farmworkers working on the Complainant’s farm for Brucellosis infection, and to ensure that the infected workers get the necessary treatment within one month from date of this report and, within three months from date of this report, put systems in place in all provincial offices to ensure proper record keeping of notifiable outbreaks and ensure that all instructions, steps, advise are properly recorded for future reference.
The Director responsible for Agricultural Inputs Control must, among other things and in consultation with MSD, liaise with Colorado Serum to satisfy himself of any further research that was conducted on RB51, and must, within sixty (60) days consider whether or not it may be necessary to amend the registration requirements of RB51 and / or the necessity to test the product in South Africa.
The Director must also take urgent steps to investigate the selling of an unregistered vaccine by Mr Daan Goosen of Disease Control Africa and consider whether it is necessary to institute criminal proceedings against him. The Registrar is required to report back to the Public Protector on his investigation within sixty (60) days from date of this report;
My office received a complaint in September 2015 from Ms LS Jakavula, the owner of Khwezi Skills Training (KST). The complaint centred on allegations of improper conduct and maladministration by the Eastern Cape Department of Rural Development and Agrarian Reform (the Department) regarding to the placement of learners in order for them to complete the practical component of a Learnership Programme, and non-payment for services rendered in this regard.
I found that the allegation that the Department unduly delayed the placement of learners in order to complete the workplace exposure part of a Learnership Programme conducted in terms of the SLA entered into with KST is substantiated.
I also found that the allegation that the undue delay by the Department prejudiced the Complainant, is substantiated. I further found that the undue delay by the Department constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.
I directed the Head of Department (HOD) to take urgent steps to pay to KST the amount of R564 200 plus interest calculated in terms of the Prescribed Rate of Interest Act, 1975 on the amount of R564 200, from the due date to the date of payment, within 30 business days from the date of this report;
I further directed the HOD to tender a written apology to the Complainant for the undue delay in payment and the prejudice that she suffered, within 15 business days from the date of this report.
Ms N C Jada, the owner of Velalanga Cleaning Services CC, approached this office in January 2013, alleging improper conduct and maladministration on the part of the Eastern Cape Department of Health. This had to do with the procurement of cleaning services for the Frontier Hospital, during the period 2007 to 2013.
I investigated whether the procurement by the department of cleaning services during the period 2007 to 2013 for the Frontier Hospital was in accordance with the legislation and other prescripts regulating supply chain management; and if not, whether the non-compliance was improper and constitutes maladministration.
I found that the procurement by the Department of cleaning services for the Frontier Hospital during the period January 2009 to March 2013 was not in accordance with the legislation and other prescripts regulating supply chain management.
In addition, the allegation that the non-compliance by the Department with the legislation and other prescripts regulating supply chain management was improper and constitutes maladministration is substantiated.
This failure by the Department constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.
To remedy the situation, I direct the HOD to take urgent steps to ensure that the procurement process for goods and services by the Department is in compliance with the provisions of section 38(1) of the Public Finance Management Act, 1999 (PFMA), Sections 16A.3,16A.5 and 16.A6 of the Treasury Regulations and the Department’s Supply Chain Management Policy to ensure that:
- The department has an appropriate procurement and provisioning system which is fair, equitable , transparent , competitive and cost effective;
- All employees of the Department dealing with supply chain management are properly qualified and trained to perform their functions; and
- Disciplinary action for misconduct against employees violating the provisions of the PFMA, Treasury Regulations and the Department’s Supply Chain Management Policy is taken without delay.
Mr Zah Ndlovu is the proprietor of Ikhaya Funeral Home. He lodged a complaint with my office in January 2017, alleging that the Road Accident Fund (RAF) was unduly delaying or failing to reimburse him for costs incurred regarding the burial of victims of motor vehicle accidents.
In the main, the Complainant alleged that he conducted funerals for victims of motor vehicle accidents; and that he entered into cession agreements with the relatives of victims of motor vehicle accidents in terms of which he, at his own cost, buried such victims, and the bereaved families as beneficiaries with the right to make a claim against the RAF for the cost of the funeral, ceded their rights to claim to him.
He also alleged that the RAF refused or failed to reimburse him for such costs as they indicated that, they had put in place a tender for a panel of funeral parlours/service providers to provide such a service.
Mr. Ndlovu further alleged that despite the existence of the said panel of funeral parlours/service providers, the RAF had paid some of his claims; and that he is entitled to be reimbursed for the outstanding seven claims in respect of which he signed cession agreements with bereaved families, and had rendered a service.
I found that the allegation that the RAF unduly delayed or failed to reimburse the Complainant for services rendered in respect of the seven (7) claims in accordance with signed cession agreements is partially substantiated.
The allegation that the Complainant suffered prejudice as a result of the RAF’s delay or failure to reimburse the Complainant for services rendered is unsubstantiated. The Complainant did suffer prejudice, but such prejudice was not as a result of improper conduct of the RAF. Prejudice was suffered due to the victim families’ failure to pay him the entire burial costs paid to them by the RAF. The Complainant could proceed to institute civil claims against the families for the balance.
As a remedy, I direct the Chief Executive Officer of the RAF to, within 60 working days from the date of this report, review the panel of service providers’ agreement to ensure inclusivity of service providers across the country.
The CEO must also, within 90 working days from the date of this report, ensure that information sessions are conducted with the funeral parlours on the roles of the RAF’s panel and the non-panel members. Measures must also be put in place to ensure that the RAF’s officials provide accurate information to the public during these information sessions. This will avoid recurrence of cases and complaints similar to this one of Mr Ndlovu.
I investigation allegations of improper conduct and legislative non-compliance by the KwaZulu-Natal Provincial Department of Health (the Department) in respect of KwaZulu-Natal Government Mortuaries (Mortuaries) resulting in substandard service delivery at these Mortuaries.
The Complainants who lodged the complaint with my office on 08 May 2015 raised a diverse range of concerns related to the practice of Forensic Pathology at the Mortuaries. Upon receipt of the complaint, I engaged with the Complainants in order to clarify and define the complaints to be investigated. I identified and summarised the complaint as follows
- There were human bodies which were not properly identified, piling up on mortuary floors, trolleys and trays outside the mortuary fridges;
- There was a high volume of decomposed and/or decomposing bodies in the Mortuaries;
- The Mortuary Managers did not possess the necessary and appropriate qualifications and experience to operate and manage the mortuaries, and there are labour related matters that may have an impact on the provision of services to the public;
- The Mortuaries do not comply with the provisions of applicable rules, laws and regulations governing the performance of forensic pathology in South Africa;
- The Mortuaries do not have the basic, necessary and relevant equipment and staff members to enable an effective public service delivery; and
- There might be other issues that affect effective public service delivery in the Mortuaries.
On analysis of the complaint, the following issues were identified to inform and focus the investigation:
- Whether there is improper conduct by the Department of Health with regard to the management of human bodies at the KwaZulu-Natal Government Mortuaries;
- Whether the Department of Health improperly failed to employ suitably qualified and experienced personnel such as Mortuary Facility Managers, Forensic Pathologists and Administrative staff at the KwaZulu-Natal Government Mortuaries;
- Whether the Department of Health improperly failed to remedy the Forensic Pathology Officers’ labour related issues, thereby impacting on service delivery;
- Whether the Department of Health improperly failed to provide sufficient quantities of the basic, necessary and relevant equipment at the KwaZulu-Natal Government Mortuaries to ensure effective and efficient service delivery;
- Whether there are other issues that affect effective public service delivery in KwaZulu-Natal mortuaries, focusing on the following:
- Whether there is a lack of cooperation between South African Police Services and Forensic Pathology Services which results in the delay of pauper burials; and
- Whether the Department of Health unduly delayed to issue outstanding post mortem reports;
- Whether the Department of Health improperly failed to manage equipment maintenance contracts; and
- Whether any person suffered prejudice as a result of the conduct of the Department.
Having considered the evidence obtained during the investigation against the standard imposed by relevant regulatory framework, I make the following findings:
The allegation that the Department improperly failed to employ properly and experienced Forensic Pathologists is substantiated. The allegation that the Department failed to remedy the labour related issues pertaining to Forensic Pathology Officers is substantiated.
The allegation that the Department failed to provide KwaZulu-Natal Mortuaries with sufficient quantities of the basic, necessary and relevant equipment to ensure effective and efficient service delivery is substantiated based on the admission made by the Department.
The allegation that there is a lack of cooperation between the SAPS and Forensic Pathology Services with regard to pauper burials is substantiated. The allegation that there is a delay in the issuing of post mortem reports is substantiated. The allegation that the Department failed to manage Equipment Maintenance Contracts is substantiated.
The allegation that the KwaZulu-Natal community, specifically members of bereaved families, suffered prejudice as a result of the conduct of the Department is substantiated.
The appropriate remedial action that I am taking in pursuit of section 182 (1) (c) of the Constitution is the following:
- The Head of the KwaZulu-Natal Provincial Department of Health must ensure that the Department monitors the Mortuaries quarterly to ensure that they comply with all relevant legal prescripts which regulate them;
- The Directors General of the Departments of Public Service and Administration and Health must, within 30 working days from the date of the final report, provide my office with a full and detailed report on the process of regularisation of the Forensic Pathology Services, including the development of Forensic Pathologists’ proper job descriptions and allocation of specific job functions;
- The Head of Department of KwaZulu-Natal Provincial Department of Health must, within 60 working days from the date of the final report, verify the number of vacant Administrators’ positions at all KwaZulu-Natal Provincial Government Mortuaries, and provide my office with a full and detailed report on the measures being put in place to capacitate these Mortuaries accordingly;
- The Head of Department of KwaZulu-Natal Provincial Department of Health must, within 60 working days from the date of the final report, develop the Standard Operating Procedure for the use and safe keeping of the Mortuary equipment, including the security measures to prevent the theft of equipment; and
- The National Commissioner of Police and Director General of National Department of Health, including the Head of the Department of KwaZulu-Natal Provincial Department of Cooperative Governance and Traditional Affairs must, within 60 working days from the date of the final report, ensure that, in line with the constitutional spirit of cooperative governance as provided for in Chapter 3 of the Constitution, establish/sign a Memorandum of Understanding to regulate their cooperation in the proper management of all government Mortuaries, including provision of land and/or grave sites for pauper’s burials to be undertaken timeously, and, make an option of cremation available for the disposal of unclaimed human bodies.
Brakpan Taxi Association
I received a complaint from members of the Greater Brakpan Taxi Association (the GBTA) and the Johannesburg Benoni Brakpan Springs Secunda Witbank Taxi Association (the JBBSSWTA), (hereinafter referred to as the Complainants) in February 2012 relating to an alleged failure by the Gauteng Departments of Roads and Transport and (the GDRT) and Community Safety (GDoCS) and the South African Police Service (SAPS) to enforce the law relating to the operations of minibuses/ midibuses (taxis).
The Complainants are members of the GBTA and the JBBSSWTA, operating on a route between Brakpan and the Johannesburg Central Business District.
In the main, the complaint was that law enforcement agencies in the Gauteng Provincial Government (the GDoCS; the GDRT and the SAPS) were failing to enforce the law and a court order which prohibited illegal taxi operators from operating on the legal routes allocated to the JBBSSWTA and the GBTA.
The Complainants indicated that they were adversely affected by the deliberate deviations and the non-compliance of the relevant “organs of state” with the resolutions adopted during the Inter-State Agencies meetings.
It was their contention that the lack of proper law enforcement in the taxi industry had caused adverse effects which included the violent assassination of at least 6 of their members.
The GDRT, the GDoCS and the SAPS did not dispute that there were issues plaguing the taxi operations surrounding the routes allotted to the two associations. The Departments involved however disputed that challenges experienced by the Complainants were as the results of their inaction or failure to enforce the law.
Upon investigating, I found that the allegation that the GDRT, the GDoCS and the SAPS failed to enforce the law in respect of operators of minibuses/midibuses operating without licences/ permits, is partially substantiated.
Among other things, the 2007 court order which the Complainants sought the Gauteng law enforcement agencies to enforce was subsequently rescinded on 16 October 2012, therefore unenforceable.
The Gauteng law enforcement agencies also failed to prevent members of the GBTA splinter group from operating taxi’s without operating licenses, which was in contravention of section 50 of the Transport Act, and for also duplicating the route between Brakpan and the Johannesburg Central Business District in contravention of section 63 of the Transport Act.
The GDoCS was further unable to consistently conduct operations targeting illegal operations in terms of section 205(3) of the Constitution and section 11(1) of the Transport Act, except on few instances.
The allegation that the GDRT, the GDoCS and the SAPS officials failed to comply with the resolutions of the Inter-State Agencies is partially substantiated. Among other things, I was not persuaded that the MEC for Roads and Transport failed to comply with the resolution of Inter-State Agencies meeting on 19 April 2013 regarding the closure of the Duduza/Tsakane Taxi Rank.
I was also not persuaded that holding of the elections of the GBTA’s Executive Committee was contrary to the Inter-State Agencies resolution. The deferment of the election of the GBTA’s Executive Committee would have been contrary to the minimum standards adopted in line with the Passenger Road Act.
The allegation that the Complainants suffered improper prejudice as a result of the alleged conduct of the GDRT, the GDoCS and the SAPS is substantiated. Lack of proper enforcement of the law resulted in unlicensed taxi operators operating illegally.
Furthermore, some of the members of the JBBSSWTA and GBTA lost their lives whilst vehicles belonging to some of the members were vandalised during the period in question.
As part of remedial action, I direct the the Heads of the Departments of the GDRT and the GDoCS, and the National Commissioner of SAPS to take steps to ensure that ensure that members of the GBTA and the JBBSSWTA, who are operating without licences do not continue operating without operating licenses, within 30 days of the issuing of this report.
They must also take steps to ensure that they shut down all illegal taxi operations in Duduza and/or Brakpan area, within 30 days of the issuing of this report.
The MEC for Roads and Transport to is directed to investigate why the Department did not report on the proposal about the closing down of the Duduza Taxi Rank and provide the findings to the Public Protector within 30 days of the issuing of the report.
The MECs for Roads and Transport and for Community Safety are directed to ensure the utilisation of the Rapid Joint Task Force to deal with illegal taxi operators.
The MEC of Roads and Transport is directed to ensure that a feasibility study is conducted and presented to the Premier on the establishment of the traffic law enforcement function within the GDRT as implemented in other Provinces and report on the outcome thereof to the Public Protector within 60 days.
Financial Services Board
I received a complaint from Mr. Julius Sello Malema, the President of the Economic Freedom Fighters (EFF) on 11 April 2017, in which complaint he alleged inter alia that the former Executive Officer of the Financial Services Board, Adv. D P Tshidi: -
- In his recommendation for the appointment of curators to administer pension funds under curatorship, acted improperly in that he favoured a particular attorney Mr. Anthony Mostert, whom, in his appointment as a Curator, unduly paid himself an amount in excess of R188 million in curator fees;
- Misled Parliament when responding to questions and his answers were designed specifically to mislead Parliament. On notification based on records obtained from the Parliament’s Hansard transcription service, the Board of the FSB intentionally ignored evidence against him and failed to take the necessary steps despite being presented with same;
- In a criminal matter relating to his improper relationship with Mr. Mostert and which emanated from falsified reports relating to curatorship, persistently refused to answer questions for fear of incriminating himself;
- Attended clandestine meetings with malicious intent, in that during the period of the criminal trial held during or about December 2010, he attended secret meetings with Mr. Mostert and his Counsel, Adv. Van Tonder;
- Abused power in that he threatened and bullied various financial institutions into withdrawing civil action against Mr. Mostert, in which he allegedly threatened to withdraw their operating licences;
- Facilitated breaches of the Inspection of Financial Institutions Act, in that he allowed the falsification of inspection reports and allowed the State Prosecutor, Adv. D’Oliveira to sit alongside the FSB Inspector, Cor Potgieter;
- Allowed non FSB – personnel, Adv. L van Tonder, to complete Inspection Reports;
- The FSB failed to accept and investigate disclosures made by whistle-blowers as envisaged in the Protected Disclosures Act, 2000. A case in point was the Board’s failure to take action to avoid the loss of over R100 million in SACCAWU pensioners’ money;
- Failed to ensure reporting in accordance with court orders;
- The FSB failed to respond to concerns raised and written requests for assistance made by Cadac Pension Fund members;
- The FSB failed to recover and / or take any action against the former Chief Financial Officer (CFO), Mr. Dawood Seedat, in respect of misappropriation and unconscionable use of public funds; and
- Failure by the FSB Board to take necessary steps against the EO, conduct constituting a violation of its fiduciary duties towards the institution (FSB).
On analysis of the complaint, the following issues were identified and investigated:
- Whether there were improprieties and / or irregularities in the nomination of curators by the Executive Officer of the FSB, to be appointed by the court, to take control of, and to manage the whole or any part of the business of the institution, on such conditions and for such period as the court deems fit, and if so, whether such conduct constitute maladministration and improper conduct;
- Whether the Executive Officer of the FSB failed to discharge his regulatory duty to properly manage the possible or perceived conflict of interest between Mr Mostert’s role as a curator and the appointment of his own law firm to assist in the administration of pension funds placed under curatorship and whether such failure was to the detriment of the pension funds; in return;
- Whether the EO of the FSB misled the Minister of Finance when he provided misleading answers in respect of written Parliamentary Questions posed to the Minister of Finance and if so, whether such conduct constitutes maladministration and improper conduct; and
- Whether Mr. Tshidi acted improperly and / or irregularly in the performance of his duties as the EO of the FSB, and if so, whether such conduct constitutes maladministration, abuse of power and improper conduct.
Regarding whether there were improprieties and / or irregularities in the nomination of curators by the Executive Officer of the FSB, to be appointed by the court, to take control of, and to manage the whole or any part of the business of the institution on such conditions and for such period as the court deems fit, and if so, whether such conduct constitute maladministration and improper conduct, I find that:
- The allegation that there were improprieties and / or irregularities in the nomination of curators by the EO of the FSB, to be appointed by the court, to take control of, and to manage any part of the business of the institution, on such conditions and for such period as the court deems fit, is substantiated;
- It is accepted that it is the exclusive prerogative of the courts to appoint curators to administer pension funds placed under curatorship. The former EO of the FSB, however, nominates and recommends a suitable candidate for appointment as such, taking into account a person’s experience in the skills necessary to act as a curator;
- The explanation which was provided by the former EO was that Mr Mostert’s appointment in all the pension funds as indicated, was logical because of the commonality of the loss suffered by the various funds and his knowledge thereof;
- The courts had already indicated that it would not easily deviate from a nomination made by the Registrar;
- The former EO did not provide any proof to suggest that he ever considered the suitability of another candidate, with due regard to the requirements of skills transfer and Black Economic Empowerment;
- The conduct of the former EO constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.
Regarding whether the Executive Officer of the FSB failed to discharge his regulatory duty to properly manage the possible or perceived conflict of interest between Mr. Mostert’s role as a curator and the appointment of his own law firm to assist in the administration of pension funds placed under curatorship and whether such failure was to the detriment of the pension funds, I find that:
- The allegation that the Executive Officer of the FSB failed to discharge his regulatory duty to properly manage the possible or perceived conflict of interest between Mr. Mostert’s role as a curator and the appointment of his own law firm to assist in the administration of pension funds placed under curatorship is substantiated;
- The court, in Executive Officer of the Financial Services Board v Cadac Pension Fund: In Re: Executive Officer of the Cadac Pension Fund & Others already determined that there was a conflict of interest between Mr Mostert’s role as a curator and his using of his own law firm to litigate on behalf of the pension funds under his curatorship. The court reiterated that the impression was created that Mostert was benefitting twice, as a curator and as an attorney.
- The former EO of the FSB failed to properly manage this conflict of interest;
- The conduct of the former EO constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.
Regarding whether the EO of the FSB misled the Minister of Finance when he provided misleading answers in respect of written Parliamentary Questions posed to the Minister of Finance and if so, whether such conduct constitutes maladministration and improper conduct, I find that:
- The allegation that the EO of the FSB misled the Minister of Finance when he provided misleading answers in respect of written Parliamentary Questions posed to the Minister of Finance, is substantiated;
- Ministers rely on advice from Heads of Administration to provide them with correct information regarding departments of entities that they are responsible for;
- By furnishing the Minister with incorrect information, the EO violated section 50 of the Public Finance Management Act 1 of 1999 (PFMA);
- The conduct of the former EO constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.
Regarding whether Mr. Tshidi acted improperly and / or irregularly in the performance of his duties as the EO of the FSB, and if so, whether such conduct constitutes maladministration, abuse of power and improper conduct, I find that:
- The allegation that Mr. Tshidi acted improperly and / or irregularly in the performance of his duties as the EO of the FSB, is substantiated;
- Due to the nature of the position that the former EO held, he was required to always act with the utmost integrity, and in a manner which encouraged a high level of ethics and trust. As the “face” of the Regulator, he was required to hold himself to a higher standard than those that he regulated;
- The conduct that he was accused of, suggested that he acted in a manner which placed into question his bona fides, integrity and whether he acted in the best interests of the organisation that he represented;
I take the following remedial action, with the view to remedying the improper conduct and maladministration:
- The FSCA to, within 90 days from date of this report, start the process of inviting curators through a competitive and transparent bidding process as envisaged in section 217 of the Constitution with a view to ensuring that there FSCA has a wider and representative number of curators to nominate from;
- The FSCA to, within 90 days from the date of this report, develop and adopt a Policy to regulate the nomination process of curators;
- The Commissioner of the FSCA to, within 30 days from date of this report take corrective action against the officials implicated in this report and put in corrective measures to avoid recurrence;
- The Minister of Finance to note my findings and remedial action and ensure that the FSCA implements the remedial action.
Illegally converted panel vans
Let us now turn our focus on the main and anchor report of this briefing. On 9 March 2012, a complaint was lodged by Mr Hennie de Beer, in both his private capacity as well as a representative for several taxi owners affected by the conversions of Toyota Quantum goods carrying panel vans into passenger carrying mini bus taxis.
I also received similar complaints in connection with allegations of illegal conversions of these vehicles into passenger carrying minibus taxis.
On receipt of the complaints, it was deemed appropriate to conduct National Stakeholder Consultative Dialogues which were held throughout the country in 2012 as it appeared that the problem was not an isolated incident but systemic in nature.
During the Dialogues in various provinces, similar complaints were raised by taxi owners complaining that their vehicles have been impounded, or declared by the traffic authorities to be unfit to be used as taxis after it was established that the vehicle can only be licensed to carry only three passengers.
In his complaint, Mr De Beer, who I am informed is here today, stated inter alia that:
- Structural defective and non-homologized Toyota Panel vans were modified by Manufacturer, Importer and Builders (MIBs) and converted into taxis to carry passengers despite the fact that they were not safe for that purpose as well as the fact that they did not meet the South African Government’s safety regulations, national standards and requirements in respect of specifications and as such, they should not have been legally permitted to operate as taxis.
- The operation of the illegally converted panel vans into minibus taxis in South African roads contributed to various motor vehicle accidents as these vehicles are alleged to be structurally unsafe and unstable when driving at a high speed, exceeded the rear axle load and led to increased tyre bursts causing accidents. These accidents are alleged to be serious and fatal for commuters in the vehicles as the seats are not securely anchored to same and tear loose during accidents.
- It has further been alleged that, various financial institutions such as Absa, Nedbank, Standard Bank, Wesbank, South African Taxi Finance as well as Toyota Financial Services have financed these illegally converted vehicles to unsuspecting buyers thus contributing to the risk of death or injury to commuters despite the fact that the manufacturer, Toyota Japan and South Africa declined to authorise the illegal conversions of their products citing that same does not adhere to their high international safety standards of Toyota Japan.
- It is also alleged that in some instances, purchasers of these vehicles were unaware that they were purchasing illegally converted vehicles while in other cases they were aware and participated in the scheme under the pretext that it was a cheaper option and/or due to unavailability of purpose built Toyota Quantum minibus taxis, they would be sold panel vans for conversion into passenger carrying minibus taxis.
- Despite having been warned of the scheme as early as around 2005, banks in South Africa continued and still continue to finance these vehicles knowing very well that they are dealing with unsophisticated clients and when confronted by clients alleging misrepresentation and/or failure to pay, legal action would be taken by the banks against those clients resulting in the vehicles being repossessed and sold again on auction to other unsuspecting buyers.
- The Department of Transport (DoT) is also alleged to have continued to illegally register these vehicles as minibus taxis that could carry about sixteen (16) passengers despite the registration certificates indicating that it is officially allowed to carry only three (3) passengers as it is a panel van.
The following issues were raised by the participants during the Stakeholder Dialogues:
- The illegal conversion of Toyota Quantum panel vans into minibus taxis by MIBs that are allegedly not authorised to carry out these conversions despite the manufacturer’s express refusal to authorise same;
- The alleged fraudulent issuing of taxi permits and registration certificates by the DoT thus enabling the illegally converted panel vans to operate as taxis;
- The effect of purchasing the illegally converted panel vans by unsuspecting buyers as well as the concomitant effect of the financial institutions in participating in such an illegal act;
- The effect of these illegally converted panel vans on accident victims transported as passengers as well as third parties;
- The alleged corrupt relationship between the government officials and taxi owners who issue operating taxi permits for the illegally converted panel vans;
- The effect of car dealerships that are selling these illegally converted panel vans to unsuspecting buyers and ordinary persons’ inability to ascertain whether or not they have been converted;
- Prospective taxi owners who unknowingly bought illegally converted panel vans from reputable car dealerships, and that it was only when the operating licenses were due for renewal that they would be informed that they cannot be provided with licenses as they have bought illegally converted panel vans; and
- The effect of these illegally converted minibus taxis on the lives of taxi owners, commuters as well as their families as in some instances the said illegally converted panel van is their only source of income.
Based on the analysis of the allegations contained in the media reports as well as information that came to my attention from various sources, I identified the following issues to inform and focus this investigation:
- Whether the DoT failed to take effective and efficient steps to ensure the safety of commuters using the Toyota Quantum panel vans that have been illegally converted into minibus taxis as a mode of transportation and whether the DoT failed to protect owners of these vehicles from the consequences of purchasing Toyota Quantum Panel Vans that have been illegally converted into minibus taxis.
- Whether the NRCS in its official capacity as a National Regulator responsible for the maintenance of compulsory specifications failed to take effective and efficient steps to ensure that all MIBs comply with the compulsory specifications as envisaged by the NRCS Act so as to restrict the illegal conversions of these vehicles into minibus taxis.
- Whether the SABS conducted adequate quality assurance tests when it was requested to do so by the DoT in 2009 so as to make a determination whether or not the Toyota Quantum Panel Vans that have been illegally converted into mini bus taxis could be retrofitted to ensure the safety of commuters using these vehicles.
Before I proceed to my findings, let me indicate that the following observations were made during the investigation:
- Some financial institutions did not inspect the goods that they were financing before they paid out the transactions. They only relied on the Master Dealer agreement signed with the Motor vehicle dealers.
- Further thereto and with regard to the financing of these vehicles, it was observed that, after some banks became aware of these illegal converted vehicles, they did not enforce the master dealer agreement and/or master service agreement which is an agreement between banks and the motor vehicle dealers.
- This agreement is to safeguard banks and consumers and it provides for a recourse to the dealer if the vehicle in question cannot be used by the customer for the purpose it was intended for.
- Some financial institutions never assisted the illegal converted panel van owners to be reimbursed for their deposits and payments made when the owners became aware that they have purchased illegally converted vehicles, instead they repossessed the vehicle and then sell it on auction to another unsuspecting buyers and the shortfall to the bank would be recorded as a failure by the illegal converted panel van owners to pay.
Having considered the evidence obtained during the investigation as against the relevant regulatory framework, I make the following findings:
Regarding whether the DoT failed to take effective and efficient steps to ensure the safety of commuters travelling in the Toyota Quantum panel vans that have been illegally converted into minibus taxis and whether the department failed to protect taxi owners from the consequences of purchasing Toyota Quantum Panel Vans that have been illegally converted into minibus taxis.
- The allegation that the Department of Transport failed to take effective and efficient steps to ensure the safety of commuters using the Toyota Quantum panel vans that have been illegally converted into minibus taxis for transport and whether it failed to protect taxi owners from the consequences of purchasing Toyota Quantum Panel Vans that have been illegally converted into minibus is substantiated;
- The department was warned about the practice and the existence of these vehicles in 2009 but failed to timeously ensure that all vehicles that were illegally converted and not brought in to be corrected were impounded and thus taken off the road as envisaged in section 87 of the National Land Transport Act.
- Toyota South Africa became aware of the practice as far back as 2005. Other than warning its motor vehicle dealership through written correspondence and in one particular instance allowing conversions under certain conditions, it does not appear to have taken any severe steps to ensure that its product is not tempered with. This is despite the fact that all parties are in unison that these vehicles are dangerous and many accidents that they were involved in had been fatal.
- The evidence and information obtained during the investigation demonstrates that, although the DoT took some action, it was ultimately not efficient and effective to ensure the safety of commuters from injuries sustained when these vehicles are involved in motor vehicle accidents and to protect taxi owners from purchasing these vehicles and the effects thereof.
- However, the department took a progressive step and removed the one thousand nine hundred and eighty six (1986) illegally converted panel vans off the roads as they were not rectified through the approved retro fitment process. With regard to the illegally converted Toyota Quantum panel vans, the DoT delayed to rectify the matter despite having known about it in 2009. It was only in March 2018 that steps were taken to remove these hazardous vehicles from the South African roads.
- It was unlawful for these illegally converted vehicles that were not rectified through the approved retro fitment process to be licensed and be registered in the e-NaTiS system as minibus taxis that are used to carry up to sixteen (16) passengers for reward whilst these vehicles are registered and should be licensed as panel vans by the DoT.
- There are gaps when these illegally converted vehicles are captured in the e-NaTiS as the information such as ID numbers and VIN-numbers are captured in the Registering Authorities and there are chances that fraud could take place where these illegal conversion can be licenced and registered for up to sixteen (16) seaters instead of three (3) seaters in the e-NaTiS systems.
- The DoT conceded that the possibility is that the front-line staff at the licensing offices altered information on the e-NaTiS system, thus opening the system to manipulation and fraudulent activities.
Regarding whether the NRCS in its official capacity as a National Regulator responsible for the maintenance of compulsory specifications failed to take effective and efficient steps to ensure that all MIB’s comply with the compulsory specifications as envisaged by the NRCS Act so as to restrict the illegal conversions of these vehicles into minibus taxis.
- The allegation that the NRCS failed to take effective and efficient steps to ensure that all MIBs comply with the compulsory specifications as envisaged by the NRCS Act in order to restrict the illegal conversion of these vehicles into passenger carrying minibus taxis for reward is substantiated.
- It is the primary role and function of the NRCS to administer and maintain compulsory specifications in the interests of public safety and health as well as promoting the rights and obligations of government to protect the health and safety of the public.
- In its capacity as the Regulator for compulsory specifications, the NRCS is also responsible amongst others, for the implementation of a regulatory and compliance system for compulsory specifications for market surveillance by the National Regulator in order to ensure compliance with the compulsory specifications. The NRCS therefore serves as the inspectorate of MIBs.
- The NRCS was advised by Toyota SA of the practice of the conversion of Toyota Quantum Panel Vans and the manufacturer’s disapproval of the practice. As the national regulator, the NRCS failed to take steps to stop the practice resulting in vehicle accidents which had severe consequences to commuters who were using them as their daily mode of transport. It is admitted that four hundred and thirty six (436) vehicles were retrofitted to make them safer but the NRCS failed to conduct surveillance to ensure the safety of the public.
- Therefore, the NRCS failed to ensure that there are no MIB’s who are illegally converting these vehicles for use as passenger carrying minibus taxis. This is despite the provisions of section 17 of the NRCS Act which bestows upon the NRCS, powers to inspect, search and seize.
- The DoT and the RTMC established that there are 1986 illegally converted panel vans that did not follow the correct process of retro-fitment through TFM.
Regarding whether the SABS conducted adequate quality assurance tests when it was requested to do so by the DoT in 2009 so as to make a determination whether or not the Toyota Quantum Panel Vans that have been illegally converted to mini bus taxis could be retrofitted to ensure the safety of commuters using these vehicles.
- The allegation that the SABS failed to conduct adequate quality assurance tests on these vehicles as requested by the DoT in 2009 with a view to making a determination whether the illegally converted vehicles could be retrofitted so as to ensure the safety of the commuters using them is substantiated.
- The SABS is a national standardisation entity in the Republic that is responsible for the development and maintenance of national standards. They are experts in the field, and the government and any other applicant relies on the SABS to advise them with regard to the quality of a commodity, product and/or service.
- The SABS failed to conduct adequate quality assurance tests in respect of the vehicles to ensure that they are safe as commuter vehicles. The tests that were agreed upon between the DoT’s technical task team and the SABS were roll over tests, tilt test, the “type 2” brake test and the seat and seat belt anchorage test.
- The tests were conducted on a static vehicle (stationery) and could not therefore produce conclusive evidence on the state of these vehicles in particular structural deficiencies which may be caused by among others, cutting of side panels to put in windows and the anchorage of the safety belts on vehicle seats rather than the chassis to ensure that they are not ripped off during motor vehicle accidents.
- It would have been prudent for the SABS to conduct high speed crash tests on these vehicles so as to induce conclusive reports on how safe would the passengers be when the vehicle has rolled and what happens to the body of the vehicle when it turns on a curve or brakes applied suddenly and any other tests which they could have considered necessary in the interests of the members of the public who were using these vehicles as a mode of transportation on a daily basis.
I take the following remedial action as contemplated in section 182(1)(c) of the Constitution, with a view to remedying gross negligence, undue delay, improper conduct and maladministration referred to in this report is the following:
The Minister of Transport to take urgent and appropriate steps to:
- Ensure that the department has an extensive updated record of a number of vehicles (illegally converted Toyota Panel Vans into passenger carrying mini bus taxis) that have been retrofitted as part of the identified 2353 vehicles, as well as the status of all others so as to establish with certainty, the remaining number of vehicles that would still need to be attended to;
- Reconcile a database of vehicles that were originally admin marked and the current value of those vehicles so as to consider the number of vehicles that will be due for scrapping and such vehicles should with the consent of its owners be duly scrapped and the owners offered scrapping allowances to enable them to acquire roadworthy and authorized vehicles;
- Verify operator validity by inspecting Operating Licensing Administration System (OLAS) to determine the number of vehicles attached to Operating Licenses and consider making it a prerequisite that a vehicle should be linked to an operating license for it to qualify for a scrapping allowance;
- Facilitate stakeholder engagement with all relevant parties such as TSAM, SANTACO, NTA, NAAMSA, NRCS, SABS, Financial Institutions and Taxi Owner representatives so as to make a determination on details of vehicles that will be eligible for scrapping based on the latest statistics; and;
- Ensure that there is an investigation conducted into the e-Natis systems manipulation which resulted in the fraudulent registration of these vehicles with a view to identifying perpetrators of these criminal conduct for arrest and prosecution by the Prosecution Authorities.
The Director-General of the Department of Transport to take urgent and appropriate steps to:
- Ensure that the measures taken and agreed to with the Minister are implemented;
- Through surveillance and monitoring, ensure that there is no Toyota panel van that has been converted into a mini bus taxi to carry passengers that is on the South African Roads.
The Minister of Trade and Industry to take urgent and appropriate steps to:
- Harness and foster good, effective and efficient working relations between the NRCS and the SABS with one being the National Regulator responsible for the maintenance of compulsory specifications and the implementation of a regulatory and compliance system for compulsory specifications and the other being a national standardisation institution mandated to maintain national standards and ensure quality of commodities, products and services in the interests of the consumers and the people of South Africa.
- This will ensure that these two entities complement each other in the interests of government, members of the public and any other applicant who may be in need of their services.
The Chief Executive Officer of Toyota South Africa to take urgent and appropriate steps to:
- To consult with the Minister of Transport with a view to participating in stakeholder engagements aimed at addressing the problem and where possible assist in the identification and removal of these vehicles on the South African roads and cooperate with the department in its endeavours.
I look forward to the full implementation of remedial action in all these reports. Where there are difficulties with implementation, my door remains open to engage, with a view to finding effective ways of bringing those affected as close as possible to where they would have been had it not been for the maladministration and improper conduct on the part of the state.
Let us remind ourselves of the Constitutional Court judgment on the EFF and others vs the Speaker of the National Assembly and others matter. The court held that:
“The Public Protector is … one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance.
“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 citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly.
“And that is the Public Protector. She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath that impropriety and corruption by government officials are.”
The court further affirmed our wide powers that leave no lever of government power above scrutiny, coincidental “embarrassment” and censure. It confirmed that members of the public aggrieved by the conduct of government officials should be able to lodge complaints with the Public Protector, who will investigate them and take appropriate remedial action.
It stressed that in the execution of my investigative, reporting or remedial powers, I am not to be inhibited, undermined or sabotaged and that my investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw State power.
Adv. Busisiwe Mkhwebane
Public Protector of South Africa