Address by the Public Protector during a media briefing held on Tuesday, January 28, 2020 in Pretoria
Address by the Public Protector Adv. Busisiwe Mkhwebane during a media briefing held on Tuesday, January 28, 2020 in Pretoria.
Programme Director, Mr. Oupa Segalwe;
Chief Executive Officer, Mr. Vussy Mahlangu;
Executive Manager: Complaints and Stakeholder Management, Ms. Nthoriseng Motsitsi;
Executive Manager: Provincial Investigation and Integration, Ms. Nelisiwe Thejane;
Chief of Staff, Mr. Sibusiso Nyembe;
Members of the media;
Ladies and gentlemen.
Good afternoon and welcome to our fourth media briefing for the financial year 2019/20. For those of you that I have not seen this year, I wish you all of the best for the next 11 months.
By now you should be aware that we hold these briefings to bring the people of South Africa up to speed with regard to the progress we register in respect of implementing our constitutional mandate.
We have the power as regulated by national legislation to investigate, report on and remedy any alleged or suspected improper or prejudicial conduct in all state affairs or the public administration, at any sphere of government.
Any report issued by this office must be open to the public unless special circumstances require that it be kept confidential.
I have concluded 12 investigation reports since the last time we gathered in this venue on 12 December 2019. However, I will focus on only three of the 12. The rest, which you will find on our website, carry the following titles:
1. Report on an investigation into allegations of maladministration and improper conduct relating to irregular appointment of a Manager for Special Programmes, tender irregularities with regards to the companies procured for the Mayoral Golf Day and the State of the Municipality Address by the Lesedi Local Municipality;
2. Report on an investigation into allegations of maladministration by the Greater Letaba Local Municipality relating to a tender for the rehabilitation of streets in Modjadjiskloof Phase 2;
3. Report on an investigation into allegation of maladministration, abuse of power, whistle-blower victimization, unfair labour practice and irregular appointment of an employee by the National Development Agency;
4. Report on an investigation into allegations of undue delay by the Department of Rural Development and Land Reform to allocate and transfer the correct portions of claimed farms to the Tshwale Community;
5. Report on an investigation into allegation of mismanagement of public funds by the Mopani District Municipality during the 2015/16 and 2016/17 financial years;
6. Report on an investigation into allegations of irregular appointment of Ms. EN Ngobeni to a position of IT Systems and Network Officer by the Mopani District Municipality;
7. Report on an investigation into allegation of improper conduct, maladministration and improper application of the Protected Disclosures Act and victimization of an employee by NTP Radioisotopes SOC LTD;
8. Report on an investigation into allegation of improper conduct and maladministration relating to the misappropriation of public funds by the Northern Cape Department of Sport, Arts and Culture and the Northern Cape Arts and Culture Council; and
9. Report on an investigation into allegations of irregular appointment of the Chief Financial Officer (CFO) of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Mr. Cornelius Machiel Smuts in 2007.
I will also comment on matters of public interest, relating to me and my office. In particular, I would like to share some thoughts on the parliamentary process to have me removed from office. But before I deal with that, allow me to reveal my findings in respect of the three reports that I wish to highlight.
Nkwanyana and Keeka v KwaZulu-Natal of Department of Health
I investigated allegations of maladministration and procurement irregularities involving the KwaZulu-Natal of Department of Health. The investigation came on the back of three complaints.
The first was received on 23 June 2015 from an MPL of the Inkatha Freedom Party in the provincial legislature. The second – from an MPL of the Democratic Alliance in the same legislature – reached this office on 5 August 2015. The third complaint was lodged anonymously with my office on 16 August 2016.
All these complaints related to an alleged improper decision to award a mobile units tender to companies trading under the names Mzansi LifeCare and Mobile Satellite Technologies (MST) by the department.
There was also an allegation that the awarding and extension of contracts to a company named Meditech SA by the department was improper as well as that there was a conflict of interest between the department and a certain Dr. JM Poo in relation to Meditech SA.
Having analysed the complaints, I identified the following three issues for investigation:
1. Whether the department improperly procured the mobile units, and if so, whether such conduct was improper and amounted to maladministration;
2. Whether the department improperly procured and extended the services of Meditech SA and if so whether such conduct was improper and amounted to maladministration; and
3. Whether the department failed to consider the conflict of interest that existed between it and Dr. Poo, a director in Meditech SA, when it appointed the company and if so, whether such conduct was improper and amounted to maladministration.
I found that, indeed, the department improperly procured the mobile units. The processes followed to lease and consequently purchase the units were improper. They were not in accordance with a system that is fair, equitable, transparent, competitive and cost effective as per section 217 of the Constitution and the Public Finance Management Act (PFMA).
As a consequence, the department incurred in respect of both the leasing and purchasing of the units amounts to irregular and/or fruitless and wasteful expenditure.
This expenditure further amounts to fruitless and wasteful expenditure as envisaged in the PFMA to the tune of R32million, and maladministration.
The Head of Department (HOD) as the Accounting Officer, who has a duty in terms of the PFMA to establish and maintain a proper competitive procurement system, failed to take full responsibility and ensure that proper control systems existed for the assets of the department when the units were purchased.
Along with the Chief Financial Officer (CFO), the HOD failed to ensure that the payments made to Mzansi Life Care for both the lease and the purchase of the units were approved and processed accordingly in line with the responsibilities entrusted to them in terms of the PFMA and National Treasury Regulations 8.1.
I also found that the department procured the services of Meditech SA improperly. The extension of the subsequent contracts with substantial increase in the scope of work was also improper.
Lastly, I found that the department failed to consider the conflict of interest that existed between itself and Dr. Poo when it appointed Meditech SA, at which Dr. Poo is a director.
Dr. Poo’s conduct as an employee of the state is in contravention of Regulation 13(c) of the Public Service Regulation, which prohibits employees of the Public Service from conducting business with the state or be a director of a company conducting business with the state.
To remedy this maladministration, I direct the MEC of Health to, among other things, ensure that the HOD considers the acts of maladministration and improper conduct referred to in this report and take appropriate disciplinary action against the officials of the department in respect of their conduct.
The MEC must further ensure that the HOD through the Provincial Treasury takes steps to recover the expenditure incurred by the department as a result of fruitless and wasteful expenditure for the purchased mobile units.
The HOD, on the other hand, must do all of the above, and, through the Provincial Treasury, evaluate the effectiveness of the department’s internal controls on Supply Chain Management processes with a view to taking corrective action to prevent a recurrence.
The HOD must also report to the Provincial Treasury and the Auditor-General particulars of the financial misconduct and the steps taken in connection with such misconduct.
In addition, I direct the Directorate for Priority Crime Investigation to consider this report and establish if any acts of impropriety identified in the report amount to acts of criminality in terms of the Prevention and Combatting of Corrupt Activities Act.
Singh v South African Police Service
I investigated allegations of maladministration relating to the irregular awarding of a contract to Tracker Network PTY (LTD) by the South African Police Service (SAPS). This followed a complaint from a certain Mr. Niemesh Singh in August 2013.
He alleged that Tracker has enjoyed a favourable relationship with the SAPS since its establishment in 1995 as SAPS resources including police officials, police vehicles and aircrafts were being utilized by the company to track and recover its clients’ stolen vehicles.
He also alleged that the relationship between the SAPS and Tracker allowed the latter to utilize state resources to fund itself, resulting in significantly higher profit margins for the company than if it were to pay for such resources itself.
He further alleged that the SAPS has not benefited from the said relationship as no fees, disbursements and expenses such as fuel and vehicle maintenance costs were borne by Tracker.
In addition, he alleged that the practice was anti-competitive in that other tracking companies were prejudiced, that the agreement between the SAPS and Tracker had previously been renewed without following proper tender procedures and that the agreement was irregular.
Upon analysis of the complaint, I decided to investigate whether the process followed by the SAPS in concluding agreements with Tracker for the provision of the vehicle tracking system in SAPS vehicles was improper and if so whether such conduct amounts to maladministration and improper conduct.
I further investigated whether the agreements entered into between the SAPS and Tracker results in the company improperly benefiting from the use of state resources, and if so whether such conduct amounts to maladministration and improper conduct.
I found that the process followed by the SAPS in concluding agreements with Tracker/Tracker Connect for the provision of the vehicle tracking system in vehicles belonging to SAPS were improper.
The process followed by the SAPS in concluding the agreements over the past 21 years failed to meet the standards imposed in terms of section 217 of the Constitution and section 2 of the Preferential Procurement Policy Framework Act and amounts to improper conduct and maladministration.
I also found that the agreements entered into between the SAPS and Tracker result in Tracker improperly benefiting from the use of state resources. The SAPS utilizes its personnel, vehicles, infrastructure and aircrafts in responding to the activation of stolen or hijacked vehicles of Tracker clients.
In this regard, the National Commissioner of Police and respective Supply Chain Management officials failed to comply with the PFMA. The conduct of the SAPS in this regard amounts to improper conduct and maladministration.
To remedy this improper conduct and maladministration, I direct the National Commissioner to, among other things, take note of this report, taking into account the fact that the SAPS does not incur any cost for the supply, installation and use of the devises. I direct that SAPS must fervently engage other service providers in the sector in order to prevent possible monopolistic circumstances by one over others.
Such engagement should be undertaken to inform and guide service providers of their needs, specifically the technical specifications of the goods, works or services that are required. This would allow service providers to either acquire or develop their technologies to meet the needs of the SAPS and enable them to also enter into such agreements with SAPS.
The National Commissioner to further consider establishing in-house capacity which will play a key role when the SAPS enters into agreements with the panel of service providers in order not to compromise national security, and safeguard sensitive information relating to SAPS Standard Operating Procedures, modus operandi, developments/sophistication of crime and the change in geographical approach to criminals. This should be reflected in the Service Level Agreement entered into with such service providers.
Various complainants v Ngaka Modiri Molema District Municipality
I investigated systemic deficiencies relating to the supply of adequate water by Ngaka Modiri Molema District Municipality in the North West province to the communities in various local municipalities within its area of jurisdiction.
Between 2012 and 2013, my office received several complaints from different communities in both rural and urban areas regarding lack of adequate water supply.
On analysis of the complaints, I identified the following two issues to inform and focus the investigation:
1. Whether due to its systemic administrative deficiencies, the municipality improperly failed and/or omitted to ensure that local communities around its area of jurisdiction receive adequate water; and
2. Whether the local communities suffered any prejudice as a result of conduct of the municipality in the circumstances.
I found among other things that the municipality failed and/or omitted to ensure that water consumers in its area of jurisdiction receive adequate water. Although the municipality has made an attempt to adhere to its constitutional obligations, the investigation revealed that most vulnerable groups within its area of jurisdiction did not enjoy access to clean and adequate water.
The investigation further uncovered that most of the challenges within the municipality relate to worn-out infrastructure, vandalised and/or dilapidated boreholes, lack of infrastructure, high costs of water distribution and poor management of water infrastructure.
Central to my findings is that I could not, based on prima facie evidence at my disposal, find any wrongdoing in respect of budget allocated and the utilisation thereof. I am however of the view that the municipality failed to prioritise the maintenance of water infrastructure specifically of areas that I focused on in my investigation such as Ramotshere Moiloa, Ratlou, Mahikeng and Ditsobotla.
The municipality failed to ensure that water service equipment are regularly maintained and that old infrastructure is refurbished. It failed to prepare a Water Service Development Plan during the periods 2012 to 2019.
I further found that water consumers suffered prejudice as a result of the conduct of the municipality. I acknowledge that the municipality is mostly rural and had for many years experienced water supply shortages, leaving communities with no option but to rely on water supplied through water tankers.
In most of these areas, where water tankers are used, the storage tanks are not lifted above the ground; there are inordinate delays in refilling the tanks; water is not purified; and the tanks are not regularly cleaned. This leaves communities vulnerable to the use of contaminated water.
To remedy to situation, the Municipal Manager is directed to ensure that the following outstanding projects in the following areas within the municipality’s jurisdiction are completed:
1. Zeerust Water Treatment Plant in Ramotshere Moiloa (replacing and reinstating pumps, installing electric cables, building protective wall and ensuring that clarifiers are functional);
2. Mokgola village in Ramotshere Moiloa (Settling Eskom electricity account for the borehole at Manogelo section, which is in arrears);
3. Gopane village in Ramotshere Moiloa (establishing the root cause for the malfunctioning borehole, configuring water reticulation network in the high lying areas and augmenting water storage facilities);
4. Braklaagte in Ramotshere Moiloa (Ensuring that the three boreholes at Mogajane, Ga-Martin and Sechotlho sections are functional)
5. Setlagole in Ratlou; (Appointing service provider for construction and completion of a reservoir, completion of a pump housing and equipping the remaining boreholes and the completion of pipework reticulation as part of the Bulk Water Supply projects);
6. Bakerville and Ga-Maloka in Ditsobotla (Appointment of contractor to complete the construction of the steel tank/reservoir, pump housing pipework reticulations and completing the “Rising Main” project);
7. Itsoseng in Ditsobotla (replacing and reinstating the pump at borehole 8 and settling the Eskom electricity account for three boreholes that are not running as they are in arrears);
8. Coligny in Ditsobotla (Implement the 1.2km pipeline project meant for augmentation of the water supply from the three boreholes to the 662kilolitre steel storage tank); and
9. Lomanyaneng in Mahikeng (ensuring that the Sedibeng Water Board completes the Mahikeng South Bulk Water project, ensuring that the municipal council drafts and adopts its Water Service Plan and by-laws for the provision of water services and complies with the terms and conditions of the Service Level Agreement entered into and signed between itself and Sedibeng Water, among other things).
I further direct the MEC of Cooperative Governance and Traditional Affairs to monitor the process of drafting the Integrated Development Plan (IDP) and assist, coordinate or take appropriate steps to ensure the planning, drafting, adoption of or review of such plans.
The Minister of Water and Sanitation must appoint a task team to assist the municipality and monitor the process of drafting the Water Service Plan, coordinate or take any appropriate steps to ensure the planning, drafting, adopting of or review of such plans.
The Minister must further monitor the performance of the municipality and intervene where there is gross failure of delivery, non-compliance and the ability to hand over water service functions to different villages within its area of jurisdiction.
IPPs and Vrede updates
I also wish to update the public on my investigation into the matter of Independent Power Producers (IPPs) and the Vrede Dairy Farm project.
The IPPs investigation is still at an early stage. Thus far several witnesses have been identified and the investigation team is preparing subpoenas for their appearance at the public hearing planned for early March 2020.
The Vrede matter, on the other hand, is at an advanced stage. We have conducted public hearings with the beneficiaries and held interviews with several key role players as well as obtained affidavits from identified former and current Department officials, including politicians.
We have further subpoenaed and received bank records of specific individuals which are being analyzed. The investigation team is also considering the audio recordings and affidavits presented by witnesses at the State Capture Commission of Enquiry.
We have encountered challenges in tracing the representatives of the beneficiaries who are key to the investigation as they signed the agreement on behalf of the beneficiaries. We have so far only managed to trace one of them who has relocated from Vrede to Gauteng province. Therefore further information is being sought from them by means of subpoenas. In an attempt to trace the representatives, the assistance of the local media, social print and otherwise has had to be resorted to.
We anticipate that the investigation will be completed by 31 March 2020.
The commencement of the process to remove the Public Protector from office
I now turn to a matter that is of grave concern to me, my staff and, without a doubt, the people of South Africa.
This is more so for grassroots communities, who see in this office their only hope at successfully exacting accountability on state functionaries and vindicating their rights.
In August 2019, the Democratic Alliance (DA) submitted draft rules on the removal of heads of Chapter 9 institutions from office to Speaker of the National Assembly, Hon. Thandi Modise.
The DA said at the time the move was for the purpose of assisting Parliament in setting up processes for the removal of heads of these institutions.
This was after I had written to the Speaker, complaining that in its haste to have me removed from office, Parliament had overlooked the fact that it had no rules in place to give effect to section 194 of the Constitution.
My letter in this regard alerted the Speaker of this omission and forced her to go back to the drawing board to do things the right way.
On 03 December 2019, the National Assembly adopted the rules. Three days later the DA announced that it had written to the Speaker, requesting that removal proceedings against me be instituted.
That request led to last Friday’s announcement by the Speaker that she had approved a motion received from the DA in which the party requested Parliament to kick-start proceedings for my removal from office. I wish to make the following remarks in relation thereto:
1. I am advised that the Rules are unconstitutional and unlawful in that they amount to a violation of the constitutionally prescribed duty imposed on organs of state to protect the independence of Chapter 9 institutions.
2. The Rules also do not adequately provide for audi alteram partem (the principle of listening to both sides of the story) at all in their application and implementation.
3. They breach the rights the Heads of Chapter 9 institutions as provided for in section 34 of the Constitution, inter alia, in that they do not make provision for the requisite non-participation or recusal of a number of seriously conflicted parties in any of the envisaged processes, including the making of crucial decisions.
4. By way of background, there are several parties both in the Executive and the Legislature, who are currently or have recently been the subjects of investigation.
5. In addition, members of the Portfolio Committee on Justice and Correctional Services in the 5th Administration, who have publicly pronounced and passed judgment on the very issues which reportedly form the subject of the complaint by the DA. I liken this to a situation where a judge, magistrate or arbitrator condemns someone and is later expected to conduct a fair trial of the very person.
6. The DA, is itself involved in litigation against me. I took the party to court to substantiate its allegations that I am a spy. This was a false claim and an insult aimed at undermining my office in violation of section 181 of the Constitution.
7. The complaint by the DA has to do with matters that allegedly occurred long before the adoption of the Rules. The purported retrospective application of the Rules is at odds with constitutional values and principles of natural justice.
8. In terms of section 181(3) of the Constitution, other organs of state, including the National Assembly, “must assist and protect [the Public Protector] to ensure [its] independence, impartiality, dignity and effectiveness”. The conduct referred to above is at odds with this constitutional injunction.
9. Also of concern is the Speaker’s conduct of making a public announcement about the process to remove me without informing me of the decision. As I indicated on Friday, I only learned about it in the media. To date, I have not heard from the Speaker. This is a violation of my rights to dignity, privacy and confidentiality and has the effect of undermining the effectiveness of this very important constitutional institution.
10. The pronouncements made by mebers of the previous Portfolio Committee on Justice and Correctional Service, who accused me of acting at odds with my constitutional duty, making statements that border on contempt of court, questioning my fit and proper status and proposing that I should resign, are also cause for concern.
11. These pronouncements were made in full knowledge that all the court cases remarked upon were still pending before the courts and therefore in breach of Rule 89 of the National Assembly, which bars members from reflecting upon the merits or any matter on which a judicial decision in a court of law is pending”.
12. In addition to this, Rule 88 of the Assembly provides that “no member may reflect upon the competence or integrity of a judge of a superior court, the holder of a public office in a state institution supporting constitutional democracy referred to in section 194 of the Constitution, or any other holder of office (other than a member of government) whose removal from such office is dependent upon a decision of the house …”
13. Rule 129R provides that the Speaker shall only approve a motion once a prima facie case has been made out. Such a case cannot be made without having afforded the affected person an opportunity to be heard. The Speaker’s conduct in purporting to approve the DA’s motion is unlawful on that basis alone.
I have, through my lawyers, written to the Speaker this morning, bringing to her attention the many deficiencies of these Rules, including those I refer to in this statement, and requesting her to furnish me with a response.
I have further requested an undertaking from the Speaker that this grossly unfair process be temporarily suspended until all the issues I raise above have been adequately addressed amicably.
I wish to stress the point that I am not against scrutiny. All I am asking for is fairness. This office and that of the Speaker of the National Assembly too are the guardians of fairness and should be exemplary.
SARS and DPCI
There is also the matters of the South African Revenue Services and the Directorate for Priority Crime Investigation. You may have seen weekend news reports that these two law enforcement institutions are investigating my tax affairs and allegations of perjury against me, respectively.
I wish to assure the people of South Africa that I am a law-abiding citizen, who pays her taxes just like everybody else. I have absolutely nothing to hide and I welcome SARS investigators to scrutinize my records in that regard. I undertake to cooperate fully with them.
With regard to the DPCI, I have indicated that I will not provide them with a warning statement. Section 5(3) of the Public Protector Act provides that “neither a member of the office of the Public Protector not the office of the Public Protector shall be held liable in respect of anything in respect of a report, a findings, or a point of view or recommendation or expressed in good faith and submitted to parliament or made known in terms of this Act or the Constitution.”
I am, however, concerned about what appears to be an abuse of state institutions to settle scores. It is a well-known fact that I have conducted and continue to conduct investigations that have not gone down well with certain sections of society. Some of those matters involve SARS. In addition, I am litigating against that institution in a matter involving the former President. I trust that this investigation into my tax affairs is in good faith.
Similarly, I refer a lot of serious matters of criminal nature to the Hawks. Such matters hardly ever receive attention and yet there seems to be a prioritisation of trivial matters such as the one in question, which can under no circumstances be referred to as a “priority crime”.
In conclusion, I wish to reflect on the words of the Constitutional Court in the EFF v Speaker of the National Assembly, delivered on 31 March 2016:
“Similarly, the National Assembly, and by extension Parliament, is the embodiment of the centuries-old dreams and legitimate aspirations of all our people. It is the voice of all South Africans, especially the poor, the voiceless and the least˗remembered. It is the watchdog of State resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people. It also bears the responsibility to play an oversight role over the Executive and State organs and ensure that constitutional and statutory obligations are properly executed. For this reason, it fulfils a pre-eminently unique role of holding the Executive accountable for the fulfilment of the promises made to the populace through the State of the Nation Address, budget speeches, policies, legislation and the Constitution, duly undergirded by the affirmation or oath of office constitutionally administered to the Executive before assumption of office. Parliament also passes legislation with due regard to the needs and concerns of the broader South African public. The willingness and obligation to do so is reinforced by each member’s equally irreversible public declaration of allegiance to the Republic, obedience, respect and vindication of the Constitution and all law of the Republic, to the best of her abilities. In sum, Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa.”
Adv. Busisiwe Mkhwebane
Public Protector of South Africa