Address by Public Protector, Adv. Busisiwe Mkhwebane during a media briefing in Pretoria on Thursday, February 28, 2019.
Address by Public Protector, Adv. Busisiwe Mkhwebane during a media briefing in Pretoria on Thursday, February 28, 2019.
Chief Executive Officer, Mr. Vussy Mahlangu;
Chief Operations Officer, Ms, Basani Baloyi;
Members of the media;
Ladies and gentlemen;
Good afternoon and thank you for honouring our invite.
I have called this media briefing to bring to the attention of the people of South African the challenges my office goes through when it merely seeks to do what the constitution expects us to do.
When I took office in 2016, I said that my office will go out of its way to take its services to the grassroots. Informed by what I call the Public Protector Vision 2023, this is exactly what we have sought to achieve.
That vision is powered by eight pillars, namely:
(1) Enhancing access to the services of the Public Protector;
(2) Using vernacular to improve our communication with the targeted audience;
(3) Expanding our footprint to be closer to the targeted communities;
(4) Leveraging stakeholder relations and formalizing those relationships in signed agreements;
(5) Empowering people to understand their rights and entitlements;
(6) Projecting an image of a safe haven for the poor and destitute;
(7) Encouraging organs of state to establish effective internal complaints resolution units; and
(8) Ultimately turning communities into being their own liberators.
This vision remains our lodestar.
The constitution enjoins us to investigate, report on and remedy alleged or suspected improper conduct in all state affairs.
This covers more than 1000 organs of state, including national, provincial and local government as well as parastatals and other institutions such as universities.
In all the cases I will list shortly, I have investigated, reported and taken appropriate remedial action and yet the complainants in the matters concerned are still waiting for implementation of those remedies.
In most cases, those left high and dry are the very people at the grassroots. This is section of society that does not have the means to take the government to court as a way of protecting themselves from prejudicial decisions of the state.
Increasingly, we find ourselves in an untenable situation, where we invest hours and resources in delivering on our constitutional mandate, only for all those efforts to come to naught.
Most of the time, there is implementation and I will provide examples to this end. In other cases, the implicated parties disagree with us and proceed to take us on judicial review.
Some, correctly so, take matters further by interdicting the implementation of the remedial action because they understand that, absent a court decision setting aside the report, there must be implementation.
But there is this crop of officials, public office-bearers and organs of state, who neither challenge the reports in court nor implement the remedial action.
Despite numerous follow-ups from our side, writing letters and even holding meetings with them, they still don’t move, thereby causing the complainants to suffer all over again.
What this effectively means is that, in some quarters, my office’s directives have become inconsequential. This state of affairs renders such a critical constitutional institution ineffective and toothless.
You’d expect that since the Constitutional Court put the issue of the powers of the Public Protector beyond doubt three years ago, we wouldn’t be grappling with these kind of issues.
I will provide a list of these officials, public office-bearers and organs of state. For the time being, I wish to highlight just a few.
As we speak, we have two whistleblowers in KwaZulu-Natal who are on the run, having fled their homes after several threats were made on their lives. Their crime was lifting the lid on the maladministration that took place in uMzimkhulu.
Last year, I asked the President to take action against the Minister of Police for failure to afford the two gentlemen the protection they require. Action is yet to be taken.
There is also the Minister of Defence who has failed to implement the remedial action in the case of one Mr. Babalo Mvithi, a former Lieutenant-Colonel in the South African National Defence Force.
He and his family are without a source of income because of maladministration on the part of the Department of Defence and Military Veterans.
The Military Ombudsman had ruled in favour of the complainant but the department would not implement. At that point Mr. Mvithi to escalate to us. We confirmed the finding of the Ombudsman and took remedial action, all in vain.
Now and again, Mr. Mvithi writes to me, complaining that my office is doing nothing about his plight when in fact we have done all that we could.
In one of his correspondences, he recounted how he can’t even afford sanitary towels for his teenage daughters as a result of what he sees as failure to assist from my office.
Tshwane South College
Then there is the matter of the widespread maladministration that we found at the Tshwane South College. In that case, too, the Minister of Higher Education and Training failed to implement remedial action. The complainants are left out in the cold.
Vhembe Concerned Pensioners
The following matter is perhaps one case that best demonstrates the gravity of the problem we have on our hands. It involves the Vhembe Concerned Pensioners Group from Limpopo.
In 2008, Messrs TJ Tshiololi, LJ Rambau and MP Ramamvhale, former members of the erstwhile Venda Pension Fund, approached this office on behalf of their colleagues at the Vhembe Concerned Pensioners.
They complained that the state, in particular the Government Employees Pension Fund (GEPF) and the National Treasury, acted improperly during the privatization of the Venda Pension Fund, resulting in the prejudice of members.
They also alleged that, due to the privatization in question, they were not entitled to full pension benefits in terms of the Government Employees Pension Law (GEP Law).
Following an investigation in 2011, this office made findings in favour of the complainants.
It found, among other things that, the complainants suffered prejudice as they were influenced to privatize their pension benefits but were not properly informed about the consequences of privatization.
Privatisation meant they would forfeit all the benefits of a defined benefit fund such as a spouse’ pension, funeral benefits and orphans’ benefits as well as a medical aid subsidy after retirement.
It was also found that the complainants suffered prejudice when their complaints and problems were ignored by the different government institutions they complained to.
It was further found that the complainants suffered prejudice as they had to apply for old age grants despite having accumulated numerous years of service.
As a remedy, this office directed that the Ministers of Public Service and Administration and Finance appoint a task team to review the implementation of Privatisation Schemes of the former Venda Pension Fund.
The task team was to also consider changes to the GEP Law and Rules if required to enable members who participated in the privatization schemes the opportunity to repay the benefits received and to recalculate their pension benefits in terms of the rules regulating normal retirement.
In addition, the GEPF was directed to recalculate the pension benefits for Messrs. Tshiololi and Ramavhale as if they retired with all their years of service as members of the GEPF including the Venda Pension Fund and afford them the opportunity to repay any benefits they might have received, excluding the amounts repaid by them to the Venda Government.
In the case of Mr. Rambau, the DPSA and Treasury were directed to order a forensic audit of the list of the firsts Privatisation Scheme of the Venda Pension Fund to determine the accuracy of the transferred amounts in respect of each member.
The remedial action was to be finalized within six months of the report, which was signed on 08 November 2011. This did not happen because government cited a number of challenges as impeding implementation.
I then proceeded to issue a special report on the same matter. The report sought to assist the Treasury to expeditiously implement the old report of November 2011 in pursuit of deliberations held with the former Treasury DG, Mr. Lungisa Fuzile and then Minister of Finance, Mr. Pravin Gordhan.
In the report, I confirmed the findings contained in the previous report of November 2011, provided guidance on how to resolve the paucity of records on the side of the state and verify information provided by the complainants relating to their posts, the departments where they were employed, their appointment dates and remuneration details.
It was my hope that the special report would resolve the impasse, thus providing necessary relief to restore the lives and dignity of the complainants and their colleagues.
I highlighted the fact that the maladministration that occurred not only deprived the complainants of a defined benefit, but also constituted a violation of their right to social security in contravention of section 27 of the Constitution.
In addition, I stressed the point that the complainants had already suffered immensely as a result of the maladministration and the long wait for implementation of remedial action.
I pointed out that many of them were penniless, relying on old age grants while a number of them had already passed away while waiting for justice. Today, that remedial action is yet to be implemented.
In December 2018, I received a report from Minister Tito Mboweni, in which he informed me that the Treasury had conducted its own investigation into the matter, which investigation was, according to the Minister, in the spirit of implementing the remedial action.
Firstly, I am very unhappy with this because, to reinvestigate and arrive at your own conclusions is tantamount to second-guessing the Public Protector, something which is inconsistent with the law.
Anyhow, the Treasury’s report arrived at a conclusion that there were no grounds to warrant a payment of compensation to the complainants.
The report went further to say that the complainants should find comfort in the fact that they receive old age grants.
We were informed this morning that the Treasury has now resolved to take these two reports, one issued in 2011 and the one released in 2016, on judicial review.
Again, this means the complainants will have to wait for months or even years on end for justice.
Often we reduce that landmark Constitutional Court judgment in the EFF and others versus the Speaker and others case to the question of the binding effect of the Public Protector’s remedial action even though it goes much further than that.
In that watershed judgment, the court held that because litigation is prohibitively expensive, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice in the form of a Public Protector.
The court 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.
It is therefore worrying that even in the face of such an unequivocal guideline on the standards that ought to be upheld by the state when dealing with the Public Protector, we still have officials, public office-bearers and state institutions that plead ignorance when called upon to right their wrongs.
This brings me to the point of this briefing. The big question here is: what does a Public Protector do when faced with such difficulties?
The most natural thing, I would say, is to mount a case in court with a view to enforcing the remedial action.
Regrettably, this is, for us, out of question. With a paltry litigation budget of R4million (this year we have gone way over budget), we simply do not have the money to go that route.
In view of the insufficient budget, we have had to be frugal in the extreme and do the unthinkable: pick and choose which review matters to defend and which to give up.
Admittedly, this is detrimental to the public image of this institution because the public should have confidence in us, knowing that we are not what my predecessors called “a gate to nowhere”.
As we speak, twenty-one (21) out of the more than seventy (70) investigation reports that I have issued since I assumed duty are under review.
We are defending only thirteen (13) due to these resource constraints. In the rest of the cases we have opted to abide by whatever the courts will eventually decide.
With little or no room to wiggle, I have decided on an approach that is rooted in the concept of moral suasion.
This is an act of appealing to the conscience and morality of the culprits by publishing details of their misdeeds, with a view to sparking a public discourse on the plight of complainants such as the Vhembe Concerned Pensioners Group.
The idea is that, in the end, public pressure should cajole them to do the right thing. Incidentally, moral suasion is a weapon used by Ombudsman institutions the world over, who, unlike the Public Protector, can only make recommendations, which are not binding on the implicated parties.
It is indeed a tragedy that, with all these powers we possess, we have had to resort to this way of doing things.
The following are, accordingly, the organs of state and individuals, against whom we made adverse findings and took appropriate remedial action as per the constitution.
Despite repeated instances of writing to them, following up on implementation and, in some cases, holding meetings with them, our pleas have simply fallen on deaf ears.
The parties concerned have neither met the timeframes stipulated in the reports nor fully implemented the remedial action, if at all.
Some have merely indicated that they will implement but are yet to do so while others have instituted legal action for review but failed to interdict the implementation of the reports. I list them in no particular order (details of their misdeeds are to be found in the press kits):
1. City of Tshwane Metropolitan Municipality – Report 32 of 2018/19 on an investigation into allegations of irregular awarding of the Smart Meter contract and improper conduct committed by the City;
2. Limpopo Department of Education – Report 29 of 2018/19 on an investigation into allegations of maladministration against the Limpopo Provincial Department of Education regarding the permanent appointment of Ms Hlungwani;
3. Master of the High Court - Report 26 of 2018/19 on an investigation into allegations of maladministration against Master of South Gauteng High Court, involving the irregular appointment of and failure to supervise a provisional liquidator;
4. North West Department of Education and Sport Development - Report 25 of 2018/19 on an investigation into alleged failure by the North West Provincial Department of Education and Sport Development to implement the recommendations of an internal audit report relating to allegations of fraud, corruption and nepotism against Mr. Mbipha;
5. City of Johannesburg: Pikitup – Report 20 of 2018/19 on allegations of maladministration relating to Pikitup’s supply chain management processes, recruitment and selection policies and misconduct arising from theft of Pikitup’s cellular telephones;
6. Dr Ruth Segomotsi Mompati District Municipality (North West) – Report no: 18 of 2018/19 on an investigation into allegations of maladministration in the matter between Mr Kagiso Samuel Kamanyane and others and the Dr Segomotsi District;
7. Greater Taung Local Municipality (North West) – Report 17 of 2018/19 on an investigation into allegations of improper conduct and victimisation of alleged whistle blower, Mr Thuso Bloem, by the Greater Taung Local Municipality resulting in his unfair suspension and consequent dismissal;
8. North West Provincial Government – Report 15 of 2018/19 on an investigation into allegations of undue delay to pay for services rendered and maladministration by the North West Provincial Government relating to the improper termination of a contract with RR Travel JV Tshepi Investment;
9. City of Tshwane Metropolitan Municipality – Report 14 of 2018/19 on an investigations into the alleged maladministration by the north west housing corporation and the city of Tshwane Metropolitan Municipality regarding improprieties in the sales and transfers of properties of the north west housing corporation situated within the boundaries of the City;
10. Minister of Police and South African Police Services - Report 12 of 2018/19 on undue delay, improper conduct, gross negligence and maladministration by the Minister of Police and South African Police Services in its failure to provide whistle blowers with security at state expense after it was recommended that they needed protection;
11. Sedibeng District Municipality (Gauteng) – Report 10 of 2018/19 on an investigation into allegations of the improper and irregular appointment of Assistant Manager Legal Advisor, Mr Sifiso Zungu, by the Sedibeng District Municipality;
12. Johannesburg Roads Agency - Report No 09 of 2018/19 on an investigation into the allegations of improper prejudice suffered by Sebenzani Trading 639 Close Corporation as a results of alleged maladministration, failure to follow proper procurement processes and collusion with a prospective service provider by the Johannesburg Roads Agency;
13. Department of Higher Education and University of Limpopo – Report No 08 of 2018/19 on an investigation into allegations of maladministration and corruption relating to implementation of the Bachelor of Medicine, Bachelor of Surgery (MBCHB) programme at the University of Limpopo;
14. City of Tshwane Metropolitan Municipality – Report No 03 of 2018 /19 on an investigation into alleged maladministration by the City of Tshwane regarding the transfer and withholding of salary of its employee, Ms. MJ Masibi;
15. Ga-Segonyana Municipality (Northern Cape) – Report No 02 of 2018 / 2019 on an investigation into allegations of irregular and improper awarding of a Security Tender Number: 6/2012 to Ikgodiseng Business Consulting cc by Ga-Segonyana Municipality;
16. Dawid Kruiper Municipality (Northern Cape) – Report No 01 of 2018/2019 on an investigation into allegations of improper appointment of Mr Willem Philander and Ms Junees Vosloo by the Dawid Kruiper Municipality, Northern Cape Province;
17. National Commissioner of Police and South African Police Service – Report No. 28 of 2017/18 on an investigation into allegations of undue delay by the South African Police Service to inform Mr LA Mokonyama of the outcome of his application for re-enlistment in the Police Service during 2010;
18. Department of Rural, Environment and Agricultural Development (North West) – Report No. 24 of 2017/18 on an investigation into the alleged failure by the North West Provincial Department of Rural, Environment and Agricultural Development to provide financial assistance to Mr J. Nchupetsang and other affected farmers for the 2003 Cold Spell disaster;
19. ESKOM – Report No 13 of 2017/18 on an investigation into allegations of abuse of power and maladministration by Eskom regarding the alleged irregular termination of a contract of services awarded to Castle Terminal CO (PTY) LTD and the irregular inclusion of Voltex (PTY) LTD and Aurecon (PTY) LTD on a Tender: Gen 3135 for the installation of light fixtures at Eskom Fossil fired power stations;
20. Ventersdorp Local Municipality (North West) - Report No. 19 of 2017/18 on an investigation into alleged irregular appointment of the Director: Engineering Services by the Ventersdorp Local Municipality;
21. Department of Rural, Environment and Agricultural Development (North West) – Report No. 16 of 2017/18 on an investigation into allegations of improper prejudice suffered as a result of the alleged maladministration by the North West Provincial Department of Rural, Environmental and Agricultural Development;
22. Department of Rural, Environment and Agricultural Development (North West) – Report No. 18 of 2017/18 on an investigation into allegations of improper prejudice suffered as a result of the alleged maladministration by the North West Provincial Department of Rural, Environmental and Agricultural Development;
23. South African National Defence Force – Report No 10 of 2017/18 on an investigation into allegations of failure by the South African National Defence Force to properly implement the recommendations of the Military Ombud in the case of LT Colonel B Mvithi;
24. eThekwini Metropolitan Municipality (KwaZulu-Natal) – Report No 7 of 2017/18 on an intervention by the Public Protector to ensure accountability by the relevant State Institutions for their roles in redressing the situation at the Glebelands Hostel in KwaZulu-Natal Province under the eThekwini Metropolitan Municipality;
25. MEC of Social Development (KwaZulu-Natal) – Report No 7 of 2017/18 on an intervention by the Public Protector to ensure accountability by the relevant State Institutions for their roles in redressing the situation at the Glebelands Hostel in KwaZulu-Natal Province under the eThekwini Metropolitan Municipality;
26. Director-General of the North West – Report No 05 of 2017/18 on an investigation into alleged improper prejudice suffered by Bapo Ba Mogale Community as a result of maladministration by the former Bapo Ba Mogale Administration and the Department of Local Government and Traditional Affairs in the Management of BAPO BA Mogale D-Account;
27. Nuclear Energy Corporation of South Africa – Report No.4 of 2017/18 on an investigation into the allegations of maladministration by the Government Pensions Administration Agency, National Treasury and Nuclear Energy Corporation of South Africa (NECSA) in respect of the pension benefits of Mr J W A King;
28. Ngaka Modiri Molema District Municipality - Report No 19 of 2016/17 on an investigation into allegations of maladministration, corruption, nepotism, fruitless and wasteful expenditure and purging of staff by the former municipal manager , Mr Mokgele Mojaki at Ngaka Modiri Molema District Municipality;
29. Department of Higher Education and Training – Report No 20 of 2016/17 on an investigation into allegations of procurement irregularities, maladministration, nepotism, corruption and victimisation of employees within Tshwane South College;
30. Tshwane South College Council – Report No 20 of 2016/17 on an investigation into allegations of procurement irregularities, maladministration, nepotism, corruption and victimisation of employees within Tshwane South College;
31. Department of Rural, Environment and Agricultural Development (North West) – Report No. 17 of 2016/17 on an investigation into allegations of failure by the North West Provincial Department of Rural, Environmental and Agricultural Development to effect payment for work done by MLB Construction on Contract Number NW 88500 for the refurbishment of Taung College of Agriculture;
32. Premier of the Limpopo Provincial Government – Report 15 of 2016/17 on Investigation into allegations of maladministration and contravention of the Executive Members Ethics Act No. 82 of 1998 by a member of the Executive Council of the Department of Transport, Safety and Liaison, Limpopo, The Hon Ms Mapula Mokaba-Phukwana (MPL;
33. MEC for Transport (Limpopo) – Report 15 of 2016/17 on Investigation into allegations of maladministration and contravention of the Executive Members Ethics Act No. 82 of 1998 by a member of the Executive Council of the Department of Transport, Safety and Liaison, Limpopo, The Hon Ms Mapula Mokaba-Phukwana (MPL);
34. National Treasury – Special Report No 15 of 2016/17 on the implementation of remedial action contained in Public Protector Report 18 of 2011/2012 on the maladministration during the privatisation of the Venda Pension Fund;
35. Government Pension Administration Agency – Special Report No 15 of 2016/17 on the implementation of remedial action contained in Public Protector Report 18 of 2011/2012 on the maladministration during the privatisation of the Venda Pension Fund;
36. Kagisano-Molopo Local Municipality (North West) – Report No 13 of 2016/17 on an investigation into the allegation prejudice suffered by Nduza Cleaning and Security Services as a result of maladministration by the Kagisano-Molopo Local Municipality in awarding a security tender number: KMLM 2012-030 to FBL Enterprise;
37. Commission for Conciliation, Mediation and Arbitration (CCMA) – Report No 14 of 2016/17 on an investigation into the alleged maladministration and prejudice suffered as a result of alleged failure by the CCMA to submit all records to the Labour Court during the review application by Royal Bafokeng Administration (RBA);
38. Department of Education (Eastern Cape) – Report No 3 of 2013/14 on an investigation into the alleged incorrect calculation of the pension benefits.
I would like to remind organs of state of the reality that cooperation with our investigations and compliance with remedial action is not optional.
The constitution in section 181 (3) enjoins organs of state to assist and protect my office with a view to ensuring its independence, impartiality, dignity and effectiveness.
It further states in section 181(4) that “No person or organ of state may interfere with the functioning of the [Public Protector]. I do not prefer to name and shame like this.
However, when we have tried all we could, we have no option but to resort to this way of doing things.
I would also like to reiterate the point that it is not all organs of state that defy us. Some readily welcome our reports and move swiftly to implement. They understand that we are there to point them to their mistakes so that they can get it right in the future.
An example is the Gauteng Department of Human Settlements. Recently, we informed the department that it had wronged a group of up to forty-five (45) small business people, who had been contracted to construct low-cost houses in Alexandra Township in the late 1990s.
The department owed them outstanding payments ranging from as little as R400, 00 to as much as R900 000, 00. We were not sent from pillar to post. The department accepted our findings and is in the process of doing right by the people affected.
I would like to single out MEC Uhuru Moiloa, who has gone beyond just complying in this case but went further to assure me of his department’s full cooperation with my office in other matters.
There are many other public office-bearers who, like MEC Moiloa, respect this institution and understand that it is not about me but the complainants who look to my office to vindicate their rights.
For instance, this week I met with the Minister Mokonyane and MEC Dhlomo from KwaZulu-Natal, who were extremely helpful and provided valuable information that will assist my investigations.
This is exactly what we wish to see in cases such as that of the Vhembe Concerned Pensioners Group and others that I have mentioned.
We do understand that aggrieved parties have the right to have our findings reviewed in court. But we urge all those who go down this route to go a step further and secure an order suspending the implementation of the remedial action as did the Premier of the Western Cape in relation to the two reports we have issued with respect to her conduct. This very is important. The Constitutional Court was very clear. Until there is a decision setting aside the remedial action, there is absolutely no reason the delay implementation.
Adv. Busisiwe Mkhwebane
Public Protector of South Africa