Public Protector to institute contempt proceedings against Minister Mkhize
The office of the Public Protector will this week initiate contempt proceedings against the Minister of Health, Dr. Zweli Mkhize following his failure, on three occasions, to honour a subpoena. In this regard, a case will be opened at Brooklyn Police Station in Hatfield, Pretoria.
Dr. Mkhize was subpoenaed to give evidence and produce documents in relation to an investigation into allegations of undue delay and/or failure by the National Department of Health to implement the recommendations of the “Report of the Clinical Associate National Task Team 2017”.
Subpoena notices were served on Dr. Mkhize on 04 February 2021 for his appearance before the Public Protector on 18 March 2021, on 21 April 2021 for 07 May 2021 and again on 24 May 2021 for 01 June 2021. He failed to present himself on all three occasions, with his office advising each time that he was unavailable.
In terms of section 7(4)(a) of the Public Protector Act, read with section 7(5) of the same legislation, the Public Protector has the power to direct any person to submit an affidavit or affirmation or to appear before her to give evidence or produce any document in their possession or under their control, which has a bearing on a matter under investigation. The Public Protector may also examine such a person.
Section 9(1)(b) of the Act states that: “No person shall, in connection to an investigation, do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.”
Moreover, section 11(3) provides that any person, who, without just cause, refuses or fails to comply with a direction of request under section 7(4) referred to above or refuses to answer questions put to them under that section or gives answer which they know to be false shall be guilty of an offense.
Under section 11(4), any person convicted of such an offense shall be liable to a fine not exceeding R40 000 or imprisonment for a period not exceeding 12 months or both.
Public Protector Adv. Busisiwe Mkhwebane explained that, unlike an ordinary investigation meeting request, a subpoena carried with it legal implications and that, absent just cause, witnesses were obliged to comply with its provisions or face legal consequences.
“It is critical for state functionaries to understand that compliance with our investigations is not optional. No less than the Constitution of the republic enjoins other organs of state to support and assist the Public Protector to ensure the institution’s independence, impartiality, dignity and effectiveness,” she said.
Note to editors
The Public Protector is investigating a complaint by Mr Sanele Ngcobo, a Clinical Associate and the General Secretary of The Professional Association of Clinical Associates of South Africa (PACASA). He wants the National Department of Health to implement the recommendations of the Clinical Associates Task Team Report.
Clinical Associates are mid-level healthcare workers who work under the supervision of medical doctors, caring for patients. In most cases, they work in disadvantaged and rural areas.
Mr. Ngcobo alleges that the introduction of the Clinical Associates profession into the South African health system came about as a result of recommendations contained in the Pick Report for Human Health Resources in 2001. According to him, these recommendations were endorsed by the erstwhile Minister of Health, the late Dr. Manto Tshabalala- Msimang in 2002.
He further alleges that, since inception of the profession, the first cohort of Clinical Associates began practising in January 2011. To better understand the value and future of the Clinical Associates, Mr. Ngcobo alleges that the National Department of Health established the Clinical Associate National Task Team. Its brief was to review the lessons learned during the training of over 900 and the appointment of almost 700 Clinical Associates, as well as how this applies to the current challenges faced by the health system.
The work of the Task Team allegedly culminated in the “Report of the Clinical Associate National Task Team 2017: Clinical Associate Training and Profession – Current Successes and Future Steps”.