Address by Public Protector Adv. Busisiwe Mkhwebane during a media briefing held on Tuesday, May 31, 2022 in Pretoria
Deputy Public Protector Adv. Kholeka Gcaleka;
Chief Executive Officer, Ms. Thandi Sibanyoni;
Acting Chief Operations Officer, Ms Lethabo Mamabolo;
Chief of Staff, Ms Luther Lebelo;
Ladies and gentlemen
Once more I welcome you all to our monthly media briefing, a platform where we reveal to the public that which has been uncovered through our investigative work in compliance with section 182(5) of the Constitution of the Republic, read with Section 8 of the Public Protector Act 23 of 1994.
Today we have five reports. We have made adverse findings in two of these reports. The two others are advisory reports while the last one is a report marking the closure of an investigation. As you may be aware, we issue advisory reports in cases where there are no adverse findings but observations that point to the need for respondents to do things differently.
Closing reports, on the other hand, are issued in cases where the allegations that gave rise to the investigation are unsubstantiated or where our preliminary investigations suggest that we do not enjoy jurisdiction to deal with a matter.
All the five investigations dealt with legal aid at the expense of the state, pension in relation to the public sector, public education, accountability in respect of the use of funds flowing from the public purse to political parties represented in Parliament for party-political activities and maladministration and/or corruption involving certain persons within the Constitutional Court.
Neti v Legal Aid South Africa (Report No. 10 of 2022/23)
We investigated allegations of failure by the East London Justice Centre of Legal Aid South Africa (LASA) to defend Mrs Tombekhaya Neti in divorce proceedings against her ex-husband, Mr Makhaya Neti, in the East London Regional Court on November 07, 2012. The investigation followed a complaint that the Public Service Commission referred to us on behalf of Mrs Neti in January 2019.
On October 05, 2012, Mrs Neti was allegedly served with summons to defend divorce proceedings that Mr Neti, with whom she had entered into a civil marriage in October 2009, instituted against her. She allegedly visited the Justice Centre of the LASA on October 10, 2012 to apply for legal assistance.
On 22 and 23 April, 2013, she allegedly communicated with a certain Mr Curt Coetzee, who was a Civil Professional Assistant at the LASA, and advised him that she required a legal representative to assist her get a 50% portion of Mr Neti’s pension benefits.
She allegedly received no further communication thereafter from the LASA until in 2016 when she crossed paths with Mr Neti, who informed her that they were legally divorced on November 07, 2012. Mr Neti’s claim was confirmed to Mrs Neti when she approached the East London Regional Court to verify the information.
In essence, Mrs Neti alleged that the LASA’s failure to defend her in the divorce proceedings against her ex-husband, Mr Neti, was improper and prejudiced her.
Having studied and analysed the complaint, we decided to look into whether the LASA failed to defend Mrs Neti in the divorce proceedings held on November 07, 2012 in the East London Regional Court, and if yes, whether the conduct of the LASA was improper and constitutes maladministration.
Our investigation established that, indeed, the LASA failed to defend Mrs Neti in the divorce proceedings before the Regional Court in East London, on November 07, 2012. Evidence in our possession revealed that Mrs Neti applied for legal assistance at the LASA on 10 October 2012.
An employee of the LASA, a certain Ms B Liwani, who at the time was a Paralegal, opened a file and Ms I. Salman, another employee of the LASA, who at the time was a Legal Practitioner, drafted the Notice of Intention to Defend. Mrs Neti’s file was opened on October 10, 2012 and the Notice of an Intention to Defend was drafted on the same date, but only served to court on November 09, 2012.
The LASA’s failure to file the Notice of Intention to Defend within 10 days was at variance with Rule 13(1) of the Uniform Rules regulating the conduct of the proceedings of the Magistrates’ Courts, which provides that the defendant in every civil action shall be allowed 10 days after service of summons on him or her within which to deliver a Notice of Intention to Defend, either personally or through his or her attorney.
That is provided that the period between December 16 and January 15, both inclusive, shall not be counted in the time within which to deliver a notice of intention to defend.
Further evidence at our disposal revealed that the LASA subsequently closed Mrs Neti’s file on November 19, 2012 without providing her with written reasons for the termination of her legal representation in the matter or a notification of the closure of her file. She was also not provided with the outcome of her request for legal assistance.
Again, this failure by the LASA to notify Mrs Neti in writing about the termination of their legal representation is at odds with Paragraph 11.1.2 (d) and (f) of the 12th Edition of the Legal Aid Guide of 2012.
That paragraph categorically states that on termination of a matter, should a Justice Centre Executive (JCE) become aware, after an instruction has been issued, that the legal practitioner or the applicant is not proceeding with the matter, the JCE must terminate the instruction in writing, and index the letter terminating the instruction to the matter’s file, and thereafter close the matter.
The LASA’s failure in this regard also offends section 195(1) (f) and (g) of the Constitution, which states that the public administration must be accountable, transparency must be fostered by providing the public with timely, accessible and accurate information.
Similarly, the LASA’s failure to defend Mrs Neti in her divorce litigation cannot be reconciled with the dictates of Section 3 of the Legal Aid Act 39 of 2014, which state that the objects of the LASA are to render or make available legal aid and legal advice; provide legal representation to persons at state expense; and provide education and information concerning legal rights and obligations, as envisaged in the Constitution and in the Legal Aid Act.
Further evidence placed before us indicated that the LASA reactivated the file on February 18, 2013 and requested Mrs Neti to give further instructions. However, the LASA still failed to advise her that the default judgement was already granted in favour of the Plaintiff and that she ought to proceed with an application for the variation of the order.
Instead the LASA continued to ask her if she intended to proceed with the matter that had already been finalized at the court when in actual fact it was supposed to advised her to apply for the variation of the order.
In the circumstances, we are persuaded to find that such procedural irregularities by the LASA as highlighted above, singularly or cumulatively constitutes improper conduct as envisaged in the Constitution and maladministration as envisaged in the Public Protector Act.
This conduct also prejudiced Mrs Neti in that she did not have an opportunity to defend the matter and claim the pension benefits she would have been entitled to by virtue of her marriage regime.
To remedy this improper conduct and maladministration, the Chief Executive Officer (CEO) of the LASA must, within 30 working days from the date of this report, present a copy of thereof to the Legal Aid Board as the accounting authority of the LASA for it to take cognisance of the findings made therein.
The Board must discuss and pass a resolution on the report in line with its legislative powers as contemplated in section 4(1) of Legal Aid Act 39 of 2014 with a view to taking steps or measures in order to address the shortcomings or maladministration highlighted in this report.
Such measures shall include, amongst other things, the LASA developing a Standard Operating Procedure within 60 days from the date of this report, which requires that the walk-in clients or complainants should sign their instructions during consultations as a confirmation of its correctness.
The LASA must conduct a refresher course within 90 days from the date of this report and train the legal practitioners on salient legal prescripts related to their day-to-day duties in order to ensure maximum effectiveness and to prevent recurrence of administrative lapses highlighted in this report.
The CEO of the Legal Practice Council must, also within 30 working days from the date of this report, ensure that the Council initiates an investigation and the disciplinary process contemplated in terms of section 37(1) of the Legal Practice Act, read with the Legal Practice Council Rules made under the authority of section 95(1), 95(3) and 109(2) of the Legal Practice Act against the LASA’s legal practitioner(s) implicated in maladministration and improper conduct highlighted in this report.
Mnisi v Government Pensions Administration Agency (Report No. 12 of 2022/23)
We investigated allegations of an undue delay and maladministration by the Government Pensions Administrations Agency (GPAA) to submit the correct tax directive information to the South African Revenue Services (SARS) in respect of Mr Casper Buyaphi Mnisi. This followed a complaint that Mr Mnisi lodged in February 2021.
Mr Mnisi alleged that he retired from the Department of Education in Limpopo Province in July 2019 and was accordingly paid both his lump sum and monthly pension afterwards.
In the 2019/20 financial year, he was entitled to a salary increase which was implemented after he left the department. As a result, the portion of the increment was not included in his pension benefit. He received payment of the money that was in arrears from the department through the BAS system and that an instruction was sent to the GPAA to effect the increment on his monthly pension income.
The GPAA issued a request to SARS to indicate how much tax should be deducted from such benefits. Upon further enquiry, he discovered from SARS that the money he was supposed to receive could not be released because the GPAA issued incorrect tax information, resulting in Mr Mnisi incurring arrears in respect of his tax returns. Furthermore, the GPAA also delayed in issuing the correct information.
He was advised by SARS to approach the GPAA to rectify the problem. On enquiring with the GPAA local office in Nelspruit, he was advised that the matter was being handled by the national office of the GPAA. He was unable to file his tax returns because of this outstanding issue and his lump sum payment could not be processed until the matter was resolved.
In essence, Mr Mnisi argued that the conduct failure by the GPAA to issue the correct information to obtain a tax directive was prejudicing him as he could not submit his annual tax returns, he could not be paid his pension arrears and his monthly pension allowance had not been accordingly updated.
Having studied and analysed the complaint, we decided to focus the investigation on whether the GPAA unduly delayed to issue the correct information to SARS to obtain a tax directive in respect of Mr. Mnisi and if yes, whether the conduct of the GPAA is improper and amounts to maladministration.
We concluded that, while the GPAA may have taken the necessary steps to ensure that Mr Mnisi’s tax directive enquiry was ultimately finalised and the tax certificate issued, there was however, undue delay in advising him when he made an enquiry in December 2020 that the tax directive was corrected and/or re-issued.
The incorrect tax directive was issued in August 2019 and the correct directive in May 2020 but the GPAA only informed Mr Mnisi in April 2021 that the tax directive had been corrected which led to the finalisation of his tax directive enquiry. Therefore, the GPAA failed or alternatively delayed to take the necessary steps to ensure that Mr Mnisi was informed that his tax directive had been issued.
If the correct tax directive was issued in May 2020 and in December 2020 Mr Mnisi was still making enquiries, it means the GPAA delayed in processing his tax directive enquiry, leading to the delay in processing his benefits.
Had GPAA exercised due diligence and a duty of care, they would not have submitted to SARS the information which contain two lump sums, leading to the issuing of two tax directives using one directive number. The GPAA would have ensured that the correct tax directive was issued in the first instance by providing SARS with the correct information when they applied for the tax directive and save Mr Mnisi from undue delays. The GPAA’s conduct has caused the delay in finalising the issuing of the correct tax directive and the finalisation of Mr Mnisi’s tax directive enquiry.
Based on the evidence above, it can be concluded that although the GPAA complied with Mr Mnisi’s request to have the corrected tax directive issued, it did not fully cooperate with our enquiry.
We recommend that the Acting Chief Executive Officer (CEO) of the GPAA must, within 60 working days of receipt of this report, develop adequate systemic processes and procedures to enable correct information being processed to request tax directives from the SARS.
The Acting CEO must put in place appropriate preventative and detective controls and systems to address the root cause and ensure that similar incidents are avoided in future.
The Acting CEO must also, within 60 working days of receipt of this report, provide a report to us with regard to the nature of the system and how effective it is or it would be.
Mpumalanga Department of Education (Report No. 13 of 2022/23)
This report is a result an own initiative investigation conducted following a dispute which arose between the Manala Mgibe Community and the Mpumalanga Department of Education in respect of the affairs of the Mokibe Primary School.
On September 04, 2020, during nationwide visits to provinces to conduct inspections at various hospitals and rural or farm schools with a view to ascertain their readiness to cope with the COVID-19 pandemic, we stopped over and conducted an inspection at Mokibe Primary School in Mpumalanga.
During the inspection, we were joined by officials of the department, namely the District Director, Mr. Maja, the Deputy Director: Infrastructure, Mr. Mguni, the Circuit Manager, Ms. ME Mahlangu and the Mokibe Community Leader, Mr. Oupa Mashiane, Ms. Khabo Tshwene, as well as members of the media and the South African Police Service (SAPS).
It was established that the school structure was in a dilapidated state and not conducive for a teaching and learning environment, i.e. the classrooms were dirty with books strewn on the floor, some of the classrooms had broken window panes, the school had no flushing toilets and relied on pit latrine with broken doors.
In addition, it was established that the school remained empty on the basis that the learners were relocated to the Bonginsimbi Secondary School by the department in June 2020 and provided with scholar transport due to the conditions of the school.
We engaged the representatives from both the department and the Manala Mgibe Community and the following was established:
- The Mokibe Primary School had a registered roll of 427 learners for the 2020 academic year, with less than 50 learners residing in the area. Most learners come from Siyanqoba, which is a neighbouring community.
- Due to the fact that the premises at Mokibe Primary School were no longer conducive for a teaching and learning environment, the department took a decision to build a new school. The Communal Property Association (CPA) provided the department with vacant land where a new school could be built. However, the new or Interim Executive Committee of the CPA refused to avail the vacant land, initially provided to the department for the construction of a new school on the basis that the CPA were of the view that the new school should be built on the land on which the old school is situated.
- The department had already erected eight mobile structures at this new land, i.e. Plot no. 91 of the farm Leeuwpoort 283 JS.
- The Policy of the departmental does not allow for construction of a school that will serve less than 150 learners, and in such cases, the policy dictates that the department should transfer learners to the neighbouring schools. As a result, the department emphasised that it cannot build a school in Mokibe, as there were less than 50 learners from the area and that the rest of the learners were from the neighbouring communities.
According to the community, in 2013 the former Premier of the Mpumalanga and now Deputy President, Mr David Mabuza, visited the area and requested that the school be closed and relocated to Siyanqoba.
However, the community refused based on the fact that there were sponsors willing to build them a school, but the principal allegedly disrupted the whole arrangement. In addition, the community indicated that the former Premier allegedly stated that the Provincial Government was closing the school, in order to save costs and yet the department is now incurring costs of transporting the learners to Bonginsimbi Secondary School.
The community also raised socio-economic issues in that the relocation of the school to another area will deny the community job opportunities such as clerical work, maintenance of the facilities, etc. that they might be benefiting from by having the school in the area. Therefore, they want the department to build the school where Mokibe Primary School is currently situated, but the department was not prepared to build a school in a community where there are less than 50 learners.
The land provided by the old committee of the CPA to the department and on which the proposed new school was to be built belongs and falls within the communal jurisdiction of the Manala Mgibe CPA. However, the community insisted that the land (which the Department was provided with by the old CPA Committee, to build the school) was no longer available. This contention is based on the refusal by the new and interim CPA Committee, to have the school constructed somewhere else, further arguing that it will take away their legacy.
On the same day of the inspection, we as the Public Protector South Africa, appealed to the department and the community to allow us to intervene in the discussions and dispute between the parties in order to assist them to reach an amicable solution. We also implored the community to remain objective when dealing with this issue and to find a solution that will serve the best interests of the children.
Pursuant to the inspection conducted and the engagements with the parties, we resolved that:
- An Alternative Dispute Resolution (ADR) meeting would be arranged in order to resolve this matter and both the Community and the Department should each propose three options to present to the meeting on how this matter could be resolved.
- The undermentioned stakeholders should also form part of the proposed meeting in addition to the Department and the Community:
- The Office of the Premier;
- Department of Agriculture, Land Reform and Rural Development (DALRRD”); and
- Organised labour, i.e. South African Democratic Teachers Union (SADTU) and National Professional Teachers’ Organisation of South Africa (NAPTOSA).
Having analysed the complaint and the information as well as the documentation received during the preliminary enquiries, the following two issues were considered and investigated:
- Whether the department was allocated land for the building of a new school but unjustifiably failed to pay the R50 000.00 monthly rental fee requested by the community which resulted in the reversal of the decision to avail the land, and if so, whether such conduct constituted maladministration and improper conduct.
- Whether the department irregularly and improperly relocated the Mokibe Primary School from its current location to the Bonginsimbi Secondary School pending the building of the new and permanent school, and if so, whether such conduct constituted maladministration and improper conduct.
Before dealing with the findings, I wish to reflect on some of the observations we made during the investigation:
- On the construction of temporary and permanent school premises, the department has not been able to acquire land for the building of a new school and as such they are still interested in Plot 91 if it is given to them, although not prepared to pay for it. As far as the construction of a temporary structure for temporary relocation of Mokibe Primary School is concerned, there are delays occasioned by the Community and local business interference in the construction project, at Erf 35 in Pine Ridge.
- On scholar transport, parents raised a concern regarding the roadworthiness of the buses. This was brought to the attention of to the Department of Public Works, Roads and Transport (DPWRT) for them to check and verify the roadworthiness of the buses and impose penalties for those buses not found to be roadworthy. The department made an undertaking that the roadworthiness of the buses would be monitored.
- In April 2022, our investigation team conducted an inspection in loco on the route and the roadworthiness of the bus. There was one bus that transported about 34 learners to Zaaihoek, the area where the original Mokibe Primary School is situated. The bus with registration no. CLJ 392 MP, may be roadworthy, but it appeared as though it needed maintenance. For instance, some seats were torn including the driver’s. A pad lock was affixed to the passenger door. The DPWRT provided the investigation team with the Roadworthy Certificate and an Operating License of the bus, attached to their letter dated 12 May 2022.
- Parents also requested that the school provide breakfast for the children as they leave home very early in the morning. In this regard, the department cannot provide meals or breakfast in the bus because the budget for National School Nutrition Programme does not cater for the provision of meals to the learners in the morning especially in the bus. But the parents or school are at liberty to raise funds and seek sponsors for that purpose.
- The uncertainty about the schooling arrangement also impacted on the registration of learners for that academic year. In that regard and, Mokibe Primary School was still housed at Bonginsimbi Secondary School. Regarding the registration of learners or the lateness thereof, the department made provision for late registration to accommodate those parents who had not applied or registered their children on time.
We now turn to deal with the findings. Regarding the first issue, we found that the Department is not prepared to pay a rental fee for the use of land to build a school. It is the prerogative of the Manala Mgibe Community to demand rent for the utilisation of their land. It is also the prerogative of the Department not to lease the land from the Community. Therefore, the allegation is not substantiated.
It cannot therefore be concluded that the conduct of the department was in contravention of section 14 of the South African Schools Act, 1996 or constitutes improper conduct, or maladministration. Therefore, the conduct of the department does not constitute maladministration as envisaged in the Public Protector Act and improper conduct as envisaged in the Constitution.
On the second issue, we found that the allegation that the department irregularly relocated the Mokibe Primary School to Bonginsimbi Secondary School is unsubstantiated. The relocation was justified considering the dilapidated state of the original structure of the Mokibe Primary School which is no longer conducive for a teaching and learning environment.
The relocation was also necessitated by the fact that the number of learners residing in the area where the original school is situated is less than 50 learners whereas more than 300 learners were from other areas.
The department’s conduct in relocating the learners from the current Mokibe Primary School premises to Bonginsimbi Secondary School was necessary under the circumstances, in order to ensure that teaching and learning continue to take place in a conducive environment until a permanent school is constructed.
The department has confirmed in a letter dated 14 April 2022 that it, in partnership with Africoalsa Inyanda Mine, has established a skills development hub at the old premises of the Mokibe Primary School, although the initial idea was to construct a Cultural Centre or a Monument.
It therefore, cannot be concluded that the conduct of the department was in contravention of section 195 of the Constitution.
Therefore, the conduct of the department does not constitute maladministration as envisaged in the Public Protector Act and improper conduct as envisaged in the Constitution. Act.
We recommend, in terms of section 6(4) (c)(ii) of the Public Protector Act, that the Head of the Department of Public Works, Roads and Transport should ensure that, within 30 working days of receipt of this report, the scholar transport with registration no. CJL 392 MP is subjected to proper technical inspection, is properly maintained and provide a report to us thereon. This will ensure that the safety of the learners is prioritised.
The Head of Department must also ensure that the road from town to Zaaihoek farm is maintained on a regular basis and provide a report to the Public Protector with the schedule on how often the road will be maintained within 30 working days from this report.
The Acting HOD of the Department of Education, on the other hand, should ensure that, within 30 working days of receipt of this report and after every 30 working days, provide a report to us on the benefits of taking the 34 learners who are transported to Zaaihoek farm, to a boarding school.
The HOD should continue with the quest to acquire land for the building of the new school and report to us after every 60 working days from this report.
Dirks v Majodina (Report No. 11 of 2022/23)
We investigated allegations of misuse of public funds allocated to the African National Congress by Parliament as political party allowance by the Member of Parliament (MP), Ms Pemmy Majodina during the award of the Personal Protective Equipment (PPE) tender to her son’s private company.
The investigation followed a complaint lodged in April 2021 by Mr Mervin Dirks, an African National Congress (ANC) MP.
Mr Dirks alleged that the award of the PPE tender for the supply of thermometers worth R52 500.00 by the ANC constituency office to the company owned by Ms Majodina’s son, Mr Thandolwethu Mkhonto we-Sizwe Majodina is, at face value, in contravention of section 217 of the Constitution.
He also alleged that Ms Majodina created a post of Graphic Designer in her office and employed her son to the post without following due process and that this deed expresses gross nepotism and disrespect for public office.
In addition, Mr Dirks alleged that Ms Majodina abused constituency funds on car rentals despite receiving monthly car allowances.
Essentially, Mr Dirks argued that Ms Majodina used public funds allocated by Parliament as political party allowances to benefit her family and that Parliament has not put adequate control mechanism in place to avert the misuse of public funds allocated by it as political party allowances.
Having studied and analysed the complaint, we decided to look into the following four issues:
- Whether the award of the PPE tender for the supply of thermometers worth R52 500.00 using public funds by the Office of the ANC Parliamentary Caucus to a company owned by Ms Majodina’s son amounted to improper conduct and maladministration;
- Whether Ms Majodina created a post of a Graphic Designer in the Office of ANC’s Parliamentary Caucus using public funds and employed her son without following due processes and if yes, whether such amounted to improper conduct and maladministration;
- Whether Ms Majodina abused public funds using the office of an ANC’s Parliamentary Caucus on car rentals despite receiving monthly car allowances and if yes, whether such amounted to improper conduct and maladministration; and
- Whether the Parliament has failed and/or unduly delayed to put adequate control regulatory measures in place to ensure transparency, accountability and sound management and expenditure of its finances; if not whether such amounts to improper conduct and maladministration.
Regarding the first three issues, evidence uncovered during the investigation showed that indeed the PPE tender for the supply of thermometers worth R52 500.00 in which public funds under the Office of the ANC Parliamentary Caucus were used, was awarded to a company owned by Ms Majodina’s son but the allegations relating to the post of Graphic Designer and car rentals were not substantiated.
This notwithstanding, our conclusion was that the affairs of the ANC do not fall within the scope of matters to be investigated by this office as contemplated under section 182(1) of the Constitution. It follows therefore that we make no findings against Ms Majodina in the three issues.
This leaves us with one issue, which is whether the Parliament has failed and/or unduly delayed to put adequate control regulatory measures in place to ensure transparency, accountability and sound management and expenditure of its finances.
We found this allegation to be substantiated. The Speaker of the National Assembly conceded during the course of this investigation that the Executive Authority of Parliament has not yet issued regulations contemplated in terms of section 34 of the Financial Management of Parliament and Provincial Legislatures Act (FMPPLA).
The Speaker submitted that Parliament is still in a process of adopting the draft regulations which are yet to be presented to the Joint Standing Committee on the Financial Management of Parliament.
The FMPPLA is a national legislation which came into force in 2009. It is now 13 years later and Parliament has not yet passed the regulations as contemplated by the FMPPLA.
As a result of the absence of regulations required of Parliament in terms of section 34 of the FMPPLA, we find that Parliament has failed and/or unduly delayed to comply with the dictates of its own legislation namely, the FMPPLA.
We further find that the Policy on Political Party Allowances presented by Parliament was approved by the Presiding Officer in 2005. We were not furnished with evidence or proof that the same policy was made in terms of the FMPPLA, published for public comment and evidence or proof of periodical review as envisaged in terms of section 65(3) of the FMPPLA.
Our conclusion is that the conduct of the Executive Authority of Parliament accordingly constitutes improper conduct as envisaged in the Constitution and maladministration in terms of the Public Protector Act.
To remedy this improper conduct and maladministration, the Speaker of the National Assembly acting jointly with the Chairperson of the National Council of Provinces as contemplated in section 5(1) and (2) of the FMPPLA, must take appropriate steps to make the regulations concerning the allocation and use of any funds provided by Parliament to political parties or to MPs, as envisaged in section 34 of the FMPPLA. This must take place within 190 working days from the date of this report.
The Secretary of Parliament, as the Accounting Officer, must periodically ensure the review of the regulations as contemplated in terms of section 65(3)(b) of FMPPLA.
Constitutional Court (Report No. 14 of 2022/23)
This is a closing report. We issue such reports in cases where the allegations or suspicions that gave rise to an investigation are either unsubstantiated or if this office is not empowered by law to deal with such a case.
The office conducted a preliminary investigation into suspicions of maladministration or improper conduct by one or more unidentified employees of the Constitutional Court for unlawfully communicating and/or leaking information concerning pending judicial proceedings thereby bringing the administration of justice by the courts into disrepute, and maladministration. This was an own-initiative investigation.
In terms of section 7(1)(a) of the Public Protector Act, the Public Protector has the power to conduct a preliminary investigation for the purposes of determining the merits of the complaint, allegation or information and the manner in which the matter concerned should be dealt with.
On Sunday 24 April 2022, the lead Senior Counsel for the Speaker of National Assembly, Adv Andrew Breitenbach SC, received a short-message-service (SMS) from a cell phone number later known to him as belonging to Mr Ismail Abramjee of Pretoria. The SMS read as follows:
“Hello Adv Breytenbach (sic) Re: The Public Protector case tomorrow. I have it on very good authority that the Concourt has declined to hear the Public Protector’s rescission application. The decision will be made known sometime this coming week but not later than Friday. I thought I’d just share this with you on a strictly confidential basis. Thanks”
It was suspected that by specifically sending the information to Adv Breitenbach, Mr Abramjee intended to assist and favour a particular side to the litigation and to hurt or prejudice the opposing side namely, the Public Protector. Furthermore, we have already reported this matter to the South African Police Service as per Brooklyn CAS 94/05/2022 with a view to conduct criminal investigations against Mr Abramjee and/or his accomplice(s).
The SMS was in relation to separate but related civil proceedings before the Western Cape High Court under case number 8500/2022 in which the Public Protector was the applicant. The relief the Public Protector sought in the Western Cape High Court depended on the outcome of the Constitutional Court case that Mr Abramjee referred to in his SMS to Adv. Breitenbach SC.
As part of the preliminary investigation, the office considered information in the Pretoria Rekord newspaper of 29 March 2022. The newspaper carried a story about a function held in honour of Constitutional Court judge, Justice Jody Kollapen, following his appointment to the apex court. The function was reportedly hosted by the Pretoria Legacy Foundation in Laudium, west of Pretoria. The newspaper referred to Justice Kollapen as the chairperson of the Foundation and Mr Abramjee as its spokesperson.
The article quoted Mr Abramjee as saying the event was even more significant in that both the Judge President Dunston Mlambo and the Deputy Judge President, Aubrey Ledwaba of the Gauteng Division of the High Court were in attendance.
From the above articles a reasonable inference may be drawn that Mr Abramjee may personally know or may have contact or communication with certain persons based at the Constitutional Court from whom he may have possibly received information concerning pending judicial proceedings regarding the case involving the Public Protector.
It was against this background information which is available in the public domain that Mr Abramjee was reasonably suspected to have received information concerning pending judicial proceedings before being made official from certain persons based at Constitutional Court as mentioned and appearing in the said newspaper articles.
Also as part of the preliminary investigation, the office issued subpoenas to several persons. In terms of Section 7(4) (a) of the Public Protector Act, “for the purposes of conducting an investigation, the Public Protector may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to provide any document in his or her possession or under his or her control which has a bearing on a matter being investigated, and may examine such person.” (Own emphasis)
Subpoenas were issued to cell phone networks, the Registrar of the Constitutional Court, the Secretary General in the office of the Chief Justice, Justice Kollapen, Justice Mlambo, Adv Breitenbach SC and Mr Abramjee.
Responses to the subpoenas were received from the cell phone networks, Registrar of the Constitutional Court, the Secretary General in the office of the Chief Justice, Adv Breitenbach SC, Rambevha Morobane Attorneys on behalf of Justices Kollapen and Mlambo, ENSafrica Attorneys on behalf of Justices Kollapen and Mlambo as instructed by General Council of the Bar of South Africa and Burger Huyser Attorneys on behalf of Mr Abramjee. All these responses were considered.
While stating that this office is not empowered to investigate this matter, the Registrar of the Constitutional Court and the Secretary General in the office of the Chief Justice indicated in their respective affidavits that there does not appear to be or to have been any contact or communication between the Constitutional Court’s Administrative staff and Mr Abramjee and that the Office of the Chief Justice, as a government department established in terms of the Public Service Act, does not have “policies, regulations or such other similar regulatory measures that govern communication, publication, safe-keeping, management and administration of the Constitutional Court’s information concerning pending judicial matters”.
The above submissions by the Registrar of the Constitutional Court and the Secretary General in the office of the Chief Justice stand be rebutted. As already argued, the source(s) of Mr Abramjee may well be members of the administrative staff or the judiciary in the Constitutional Court as circumstantial evidence suggests. The focus of this preliminary does not relate to judicial proceedings or court decisions per se but to the criminal and the improper act of leaking information. Such corrupt and/or otherwise improper conduct falls directly in the heartland of the Public Protector’s mandate, as set out in section 6 of the Public Protector Act. The judiciary forms part of the state and the Public Protector has jurisdiction to investigate improper conduct in state affairs. What is expressly precluded by section 182(3) of the constitution is court decisions. This is not about the court decision or a judicial function.
Except for Adv. Breitenbach and the network providers, all of the other respondents advanced that view that this office is not empowered to investigate this matter and did not supply the information that was required.
Be that as it may, the weight of available circumstantial evidence established in this preliminary investigation appears to tilt the scales towards an ineluctable conclusion that the sources of Mr Abramjee may well be members of the administrative staff or judicial officials based at Constitutional Court. The weight leans more towards members of the judiciary.
An analysis of the cell phone data received from network providers shows that 18 telephone calls were exchanged between the number from which the controversial SMS to Adv. Breitenbach was made and the one registered under the name Narandran Kollapen. These calls were exchanged between 04 January 2022 and 22 April 2022, two days before Adv. Breitenbach SC received the controversial SMS. The shortest call lasted three seconds while the longest took 436 seconds or just over seven minutes.
There was just one cell phone call on 04 March 2022 between the number from which the controversial SMS to Adv. Breitenbach was made and the number registered under the Department of Justice and Constitutional Development, the number reasonably suspected to be issued to or used by Justice Mlambo.
Evidence also showed that the controversial SMS was not the first time Mr Abramjee sent text messages to Adv. Breitenbach SC. There were two other text messages before including one sent on August 22, 2021 at 21:48 in which Mr Abramjee writes:
“Hello Adv Breitenbach. My name is Ismail Abramjee from Pretoria.
Re: Parliamentary appeal on PP rules:
I was speaking to a judge colleague about your matter pending appeal and the following discussion ensued. I am not certain if you are aware of the Act.
The Law Reform Commission Act requires that the chairperson of the commission be a High Court judge.
However, when the judge sits and chairs the commission’s meetings, he does not do so as a judge but merely as a chairperson of the commission.
I thought that this snippet of information may just assist you in your case against the public protector.
In the light of this particular SMS, it becomes relevant to indicate that the South African Law Reform Commission is an independent advisory statutory body established in terms of the South African Law Reform Commission Act of 1973. It investigates the state of South African law and makes reform proposals to the national and provincial legislatures. Judge Narandran Kollapen is the Chairperson of the SALRC.
The cumulative weight of this evidence as highlighted in the SMSes sent to Adv Breitenbach by Mr Abramjee, the frequency of telecommunication or close association between Mr Abramjee and the judicial officers, are all sufficient to lay a foundation of a belief upon which to invoke section 14(1) of the Judicial Service Commission Act.
Equally, the motive behind the unsolicited SMSes sent by Mr Abramjee to Adv Breitenbach is emblematic of a nefarious intention and effort to commit a criminal conduct in terms of Prevention and Combatting of Corrupt Activities Act 12 of 2004 (PRECCA) or in terms of other statutory or common law crime offences. Accordingly, this aspect triggers a referral to the Directorate for Priority Crimes Investigation (DPCI) for criminal investigation against Mr Abramjee and his accomplice(s).
The preliminary investigation has proven that the nature of this complaint invariably stretches to the judicial arena. Furthermore, the complaint carries all the hallmarks of criminality and nefarious motives by Mr Abramjee and his accomplice(s). Consequently, the complaint may not be executed fully within the mandate of the Public Protector, without bringing it to the attention or notice of the Judicial Service Commission, the South African Police Service and the DPCI.
In line with the provisions of section 6(4)(c)(ii) of the Public Protector Act, this matter is accordingly referred to the Judicial Service Commission as envisaged in section 14(1) of the Judicial Service Commission Act.
Similarly, in line with section 6(4) (c)(i) of the Public Protector Act, this matter is referred to the DPCI for investigations of possible violations of PRECCA and other crimes which may have been committed in connection with the unsolicited SMSes sent to Adv Breitenbach by Mr Abramjee and his accomplice(s) to unlawfully influence the outcome of a judicial process in pursuit of a manifestly nefarious motive. The matter is therefore closed.
We trust that, in the matters where we made adverse findings and took appropriate remedial action and those on which we made advisory recommendations, the respondents will implement and consider our recommendations. In those cases, were made referrals to other forums, we trust that the forums in question will give these matters the due consideration within their own independent discretions.
As we conclude, we would like to take this moment to pay tribute to our Executive Manager, Adv. Stoffel Fourie and Senior Investigator Marina Fourie. Today is their last day of service as Public Protector South Africa (PPSA) employees. They are retiring after giving 27 and 22 years respectively to serve the people of this country with distinction as staff members of the PPSA.
A veteran investigator, Adv. Fourie is an original member of the PPSA staff, having been there right at the beginning when this office first opened its doors for service in October 1995 while Ms Fourie, a stalwart in her own right, swelled the ranks of this institution as far back as 2000. This has been an emotional week for them as you can imagine.
But they are not the only ones leaving. Our Chief Financial Officer, Ms Yalekile Lusibane, who joined the PPSA 2017/18 and Executive Manager: Complaints and Stakeholder Management, Ms Nthoriseng Motsitsi, who joined the office in 1999, left in 2006 and came back in 2017, are also leaving at the end of June 2022. While Ms Lusibane is pursuing other interests, Ms Motsitsi is going on retirement.
Under Ms Lusibane’s stewardship, this office made history. She marshalled the Finance and Supply Chain Management teams to two consecutive clean audits, a feat that was until now unheard of in our corridors.
Ms Motsitsi, on the other hand, has been in charge of Complaints and Stakeholder Management, a branch which can best be described as the engine of this institution. All complaints that reach Head Office pass through her hands irrespective of whether they come through the call centre, email, post office or walk-ins. It is at CSM where complaints are registered, complaint files are opened and complaints are assessed for jurisdiction.
Adv. Fourie, Ms Fourie, Ms Motsitsi and Ms Lusibane join a few other long-serving employees who called time on their illustrious careers by way of retirement over the last several months. Among them, Adv. Suné Griessel who headed our Cape Town office, Adv. Gideon Landman, the former regional manager of the George Office, and Ms Kedibone Selamolela at our Mahikeng office.
We can't say we are happy to see them go but such is life. We are grateful for their immeasurable contribution. This office was built on their backs and they should be proud of the legacies they leave behind. We wish them all of the best.
Public Protector South Africa
Adv. Busisiwe Mkhwebane