Address by the Public Protector Adv. Busisiwe Mkhwebane during a virtual media briefing in Pretoria on Wednesday, September 30, 2020.

 

 

Address by the Public Protector Adv. Busisiwe Mkhwebane during a virtual media briefing in Pretoria on Wednesday, September 30, 2020.

 

Programme Director, Mr. Oupa Segalwe;

Deputy Public Protector, Adv. Kholeka Gcaleka;

Acting Chief Executive Officer, Ms. Yalekile Lusibane;

Chief Operations Officer, Mr. Lucky Mohalaba, who I wish to single out as a recent appointee to assist our investigative work;

Acting Chief of Staff, Ms. Lethabo Mamabolo;

Executive Managers for Investigation Branches;

Members of the media;

Ladies and gentlemen;

 

Good afternoon,

 

Thank you once again for joining our quarterly media briefing and the second for the 2020/21 financial year. A special word of gratitude to the media on whose work we rely for the messages we seek to convey to the public to reach the target audience. 

 

As I often say, this briefing not only seeks to bring the public up to speed with investigation output from this office but also gives effect to Section 182(5) of the Constitution, read with sections 8(1) and 8(2A)(a) of the Public Protector Act, in terms of which it is incumbent upon me to make my investigation reports public.   

 

Accordingly, I am releasing findings and, where appropriate, remedial action in respect of about 14 reports, which cover various themes including irregular staff appointments, the plight of refugees, whistle-blower victimisation, abuse of public resources and executive ethics. 

 

Our approach to investigations remains the same. First, we establish what happened, which is a factual enquiry relying on the evidence obtained from the parties and independently sourced during the investigation.

Second, we establish what should have happened, focusing on the law or the rules that regulate the standard that should have been met. 

 

Third, we establish if there is a discrepancy between what happened and what should have happened and whether the deviation amounts to maladministration or proper conduct. 

 

Once we have established a discrepancy, we then move to the question of remedial action, thereby seeking to explore options of redressing the consequences of improper conduct and maladministration. 

 

I will deal with some of the reports and leave others for the DPP, Adv. Gcaleka. But before we deal with the reports, I wish to take this opportunity to make a few remarks about other equally important aspects of our work and also bring the public up to speed with regard to progress on pending investigations, which have generated a lot of interest from both the public and the media. Likewise, the DPP will deal with others.

 

Webinar on the use of official languages for government purposes

 

As you may be aware, we held a very successful webinar two days ago as part of the commemoration of Heritage Month, looking into the use of official languages in government for government purposes as contemplated in the Constitution and the law. 

 

In particular, we looked at the contribution of failure to comply with this legal framework towards service delivery and good governance challenges. We had an esteemed assemblage of panellists drawn the oversight sector, academia and the arts sphere.

 

Coming out of that conversation, we are considering a systemic investigation on own initiative into the South African Broadcasting Corporation and the regulator of broadcasting, the Independent Communication Authority of South Africa  and the courts. 

 

The goal will be to help ensure that the people of this country have access to important information and to access justice from the perspective of the use of official languages. We intend working closely with the CRL Commission and PanSALB on this. More details on this will be made available in the due course.

 

Outstanding investigations that have attracted a lot of public interest

 

We have been receiving a lot of queries from the public on progress regarding the Vrede investigation into the role of politicians and the plight of beneficiaries in respect of the Estina Integrated Dairy Project. The investigation is all but completed. 

 

The investigation proved to be more complex than we had thought thus various other institutions had to be approached to assist with the information required. This took longer than expected. 

 

Only earlier this month were able to serve implicated parties with notices in terms of section 7(9) of the Public Protector Act. We had hoped that we would get their responses on time and have the report ready for this briefing. Some of the parties requested more time to adequately consider the contents of the notices before preparing their responses. 

 

I must add that such requests are commonly requested by parties’ especially in complex matters and in the interest of fairness, we do allow parties reasonable extensions of deadline so that they can adequately, and to their satisfaction, respond to potential adverse findings. We expect that, by the last week of this month, we would have received all the responses so that we can wrap up the investigation and publish the findings.

 

Other reports that are in the pipeline include one on an investigation into alleged maladministration involving irregular appointment of staff, irregular salary increases, financial mismanagement, procurement irregularities and conflict of interest within the City of Johannesburg during the time of former Executive Mayor, Herman Mashaba.

 

There is also the Alexandra Renewal Project, on which we collaborated with the South African Human Rights Commission (SAHRC).  This investigation followed violent service delivery protests in the township in April 2019. On the matter, we tackle the maladministration aspects of the issues in question, including the allocation of resources by respective governments towards the delivery of quality public services in the township while the SAHRC focus on human rights issues such as access to housing, water and sanitation, education, health, the environment that is not harmful to the health and wellbeing of the people of Alexandra, among other things. 

 

Also in the pipeline is one of the Mopani-Giyani Water Project, where it has been alleged that several water projects fell victim to tender manipulation and political interference. These include the repairing water infrastructure in the Mopani District in Limpopo, the raising of the Hazelmere Dam wall, the 36 kilometre pipeline between Craigieburn and Greytown and the building of the Clanwilliam Dam wall.

 

Over to you Adv. Gcaleka. 

 

 

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COVID-19 related matters

 

Thank you Public Protector and good afternoon. Warm greetings also to the Acting CEO, COO, the Executive Managers, Acting Chief of Staff and members of the media.

 

We received about 1 602 COVID-19 related complaints, the bulk of which relate to service delivery failures. Eight of the total are good governance matters and relate to procurement irregularities with financial implications for the public purse, estimated at R4billion. 

 

A lion’s share of the service delivery related matters in respect of COVID-19 have to do with the R350-a-month special social relief of distress grant. All these service delivery and good governance investigations are in progress. 

 

Although we experienced challenges in some provinces with regard to access to documents and evidence, that has been settled. As indicated previously, we have established a committee of senior and well experienced investigators whose focus is solely on these matters. The aim is to dispose of them as expeditiously as possible. 

 

 

Public hospitals and schools visits 

 

 

We have also embarked on an own initiative investigation into the state of the country’s health care system as well as the basic education conditions. The investigation was precipitated by the public outcry and media reports as a result of the pandemic. As part of this, the Public Protector and I have embarked on visits to hospitals and schools to, among other things, establish how they are coping with the devastation brought about by COVID-19 and the general state of the facilities in respect of whether they are able to render services effectively and efficiently to the citizenry of the republic.

 

We have thus far visited such facilities in the Eastern Cape, Gauteng, Limpopo and Mpumalanga. The next stop is KwaZulu-Natal in the coming week. Details to that effect will be communicated in due course. 

 

 

In the meantime, we have been in consultation with stakeholders including the Ministers of Health and Basic Education, SAHRC and the Office of Health Standards Compliance in respect of our findings and observations where hospitals are concerned. 

 

 

Reports for each province are being prepared and the MECs in the provinces we have already visited have been or are being requested to comment on the draft reports. Once finalised, these reports will be shared with the Minister of Health, the MECs of Health, the Minister of Finance and the President. 

 

I now proceed to the main business of the day, which is the findings on the 14 investigations.

 

 

 

Maboho v Department of Justice and Constitutional Development (Report No. 87 of 2019/20)

 

 

I investigated allegations of failure by the Department of Justice and Constitutional Development to confirm a position of acting Chief Magistrate and to effect payment of an acting allowance. The investigation was occasioned by a complaint from Mr. S. Maboho in August 2013.

 

In his complaint, Mr. Maboho alleged that, as a Senior Magistrate at the Pretoria North Magistrate’s Office, he acted as Chief Magistrate from 1 July 2007 to 17 August 2010 following the retirement of the Chief Magistrate. He alleged that he was never paid his acting allowance for this period. However, he was paid an acting allowance from 18 August 2010 to 17 November 2010 after being appointed to act in the position.

 

He also alleged that he raised the matter with both the former Minister and Deputy Minister of the Department of Justice and Constitutional Development as well as the Director-General. When the department failed to respond to his complaint, he decided to turn to the Magistrates Commission and lodged a grievance. 

 

Mr. Maboho further alleged that, in response to the grievance that he lodged, the former Deputy Minister of the Department refused to issue an acting judicial appointment to him as an acting Chief Magistrate, citing a decision by the former Minister, that the position of Chief Magistrate for the Pretoria-North office, which had become vacant after the incumbent of the post retired, was kept in abeyance pending the re-demarcation of the magisterial districts. 

 

Furthermore, that the post of Chief Magistrate would be hugely affected by the pending re-demarcation process. This is despite the fact that in numerous correspondence, the Department addressed him as “Acting Chief Magistrate”.

 

According to Mr. Maboho, the Grievances Committee of the Magistrates Commission however upheld his grievance on the grounds that the post had not yet been abolished and was still a funded post in the Pretoria-North office and further that the structure thereof had not changed since the former Chief Magistrate retired.

 

Other acting Chief Magistrates in the area were being paid an acting allowance, a matter he raised with the Department pursuant to the recommendations of the Magistrate’s Commission – all in vain.

 

 

After analysing the complaint, I decided to investigate whether the Department improperly advised the Minister and failed to confer any benefit to Mr. Maboho of him having performed duties and mandatory responsibilities in the position of Chief Magistrate that have become temporarily vacant during the period 1 July 2007 until 17 August 2010 and whether he was improperly prejudiced by performing duties of a Chief Magistrate without being remunerated.

 

 

I found that indeed the Department improperly advised the Minister and failed to confer any benefit to Mr. Maboho of him having performed duties and mandatory responsibilities in the position of that of Chief Magistrate that had become temporarily vacant during the period 1 July 2007 until 17 August 2010 and he was improperly prejudiced by performing duties of a Chief Magistrate without being remunerated.

 

 

To remedy this maladministration and improper prejudice, the Acting Director-General, must within sixty (60) working days from the date of this report, calculate and pay an applicable acting allowance in line with the legally prescribed period.

 

 

 

Pratt v South African Reserve Bank (Report No. 105 of 2019/20)

 

 

I investigated allegations of maladministration and improper conduct at the South African Reserve Bank and the First Rand Bank. The investigation followed a complaint by Ms. Anne Pratt. 

 

The complaint was initially lodged by Ian Levett Attorneys on behalf of the complainant on 21 April 2016. The complainant later submitted a revised complaint during April 2017. In essence, she alleged among other things, that:

 

a) The SARB issued Exchange Control Rulings to authorised dealers setting out the conditions, permissions and limits applicable to transactions in foreign exchange which may be undertaken by authorised dealers as well as details of related administrative responsibilities.  

 

b) First Rand, in exercising their powers, rights and obligations under the Regulations and Exchange Control Rulings, is exercising a public function and that the Public Protector is empowered to investigate First Rand;

 

c) First Rand unlawfully marketed and sold loop structures to its high wealth clients as a purported legal and legitimate way in which such clients could export funds from South Africa off-shore. This included the complainant who was incorrectly informed and advised by First Rand that the loop scheme devised for her was a legal and legitimate way in which she could export funds off-shore. 

 

After analysing the complaint, I decided to investigate whether the South African Reserve Bank acted improperly and/or abused its power in dealing with Ms. Pratt’s complaint against First Rand Bank and whether the Public Protector has jurisdiction to investigate the allegations of Ms. Pratt against First Rand Bank.

 

I could not make any findings as the matter was dealt with in court and I do not enjoy jurisdiction over First Rand Bank. On these grounds, the investigation was closed.

 

 

 

Moodley v University of Pretoria (Report No. 127 of 2019/20)

 

 

I investigated allegations of undue delay by the University of Pretoria to address queries raised by Ms PT Moodley. The complainant is a student at the University of Pretoria, alleging that the university unduly delayed to address queries that she raised with them.

 

In the complaint, she alleged that she made a query to the University for Quality Assurance in respect of the reasonableness of the criteria for the Property Law (SAR310) assignment.  

 

She complained about the lack of transparent engagement to objectively address her concerns about the sudden unexplained downturn in her performance after she actively and critically engaged with an issue such as the reasonableness of an assignment.

 

She requested a referral of the ISR310 assignment for independent assessment or moderation in order to address any perceived bias or feeling of victimisation by her.

 

The university has allegedly not constructively engaged her with a view to addressing the concerns raised about the treatment of and seeming bias against her.

 

After analysing the complaint, I decided to investigate whether the university addressed the complainant’s enquiry relating to the reasonableness of the criteria used for the Property Law (SAR310) assignment, and further whether they failed to provided her with a model answer that she requested for this assignment. 

 

I also looked into whether the university failed to have transparent engagements with the complainant to address her concerns, regarding reasonableness of an assignment, which resulted in a downturn in her performance. 

 

In addition, I looked into whether the university failed to attend to the complainant’s request for her ISR310 test script to be independently assessed or moderated in order to address any perceived bias or feeling of victimisation, wherein she was of the opinion that she was marked more stringently than other students.

 

I found all of these allegations to be unsubstantiated. The reasons thereof are detailed in the report. During my interaction with this particular case and other cases against the university I made the following observations and directed the following remedial action to be taken, which in my opinion will enhance the manner in which the university functions and operates when dealing with complaints received from students, parents or personnel within the university structures.

 

The university needs to maintain complaint files as well as have clear procedures for receiving, reviewing and evaluating complaints preferably by establishing a formal designated independent complaints unit that will serve as an ombudsman office. 

 

The Complaints need to be investigated in a uniform and timely manner. Having this independent unit will instil confidence and give the impression of a separation of powers approach, protecting the independence and integrity of the complaints which are to be investigated.  

 

Having a designated complaints unit will circumvent an influx of cases that the office of the Public Protector receives against the university.  Persons will be able to report matters directly to the complaints unit / Ombudsman, instead of approaching the office of the Public Protector for assistance, as an office of first instance.  

 

 

Van Der Steen v Dawid Kruiper Local Municipality (Report No. 128 of 2019/20)

 

 

I investigated allegations of improper conduct and maladministration relating to the appointment of staff by the Dawid Kruiper Local Municipality in 2016 following a November 2016 complaint from Mr PT van der Steen, a member of the Council of the Municipality. 

 

He alleged that the municipality appointed Mr. SP May, Ms. R George, Mr. DZ Ntlanganiso and Mr. Desmond van Wyk in 2016 without the relevant posts being advertised and interviews held.

 

In essence, Mr. Van Der Steen alleged that the appointments were not in accordance with the relevant laws and prescripts regulating the appointment of staff of the municipality and that the conduct of the municipality in this regard was improper, constituted maladministration and resulted in irregular expenditure. 

 

After analysing the complaint, I decided to investigate whether the temporary appointments of Mr. SP May, Ms. R George, and Mr. D Z Ntlanganiso by the Municipality in 2016 were in accordance with the relevant laws and prescripts regulating the recruitment and selection of staff of the Municipality; and if not, whether the conduct of the Municipality was improper, constitutes maladministration and resulted in irregular expenditure.

 

I found all these allegations to be substantiated. The vacant positions were not advertised and the recruitment and selection process prescribed by the Policy was not followed. The remuneration paid to Mr May, Mr Ntlanganiso and Ms George from the date of their appointment accordingly constitutes irregular expenditure, as contemplated by the MFMA.

 

To remedy this improper conduct and maladministration, I direct the Municipal Manager to take appropriate steps in respect of disciplinary action against the officials that were involved in the irregular appointment of Mr. May, Mr. Ntlanganiso and Ms. George in terms of the disciplinary procedures of the Municipality envisaged in the Municipal Systems Act and the MFMA within thirty (30) business days from the date of my report.

 

The Municipal Manager must also institute proceedings for the judicial review of the irregular appointment of Mr. May, Mr. Ntlanganiso and Ms. George, in terms of relevant prescripts within thirty (30) business days from the date of my report.

 

 

Anonymous v Mogalakwena Local Municipality (Report No. 1 of 2020/21)

 

 

I investigated allegations of irregular appointment of Mr PJ Mashamaite to a position of Deputy Manager Corporate Services by the Mogalakwena Local Municipality in Limpopo. This followed an anonymous complaint received on 11 November 2018.

 

In the complaint, it was alleged that the municipality advertised three different posts, including that of Deputy Manager: Corporate Services in the Noordelike Nuus/Northern News newspaper dated 28 October 2016.

 

The minimum requirements for the post of Deputy Manager: Corporate Services were, a Bachelor’s degree or in Public Administration, Law or equivalent. In terms of the requirements, the incumbent ought to have had a minimum of four to five years relevant experience at middle management. The applicant also needed to be computer literate and have a driver’s license.

 

According to the complainant, the appointed candidate, one Mr. PJ Mashamaite, applied for the position and was shortlisted even though he did meet the minimum requirements for the post. He is also alleged to have not attached copies of his qualifications as required by the advert. However, the municipality allegedly went on to interview and appoint him.

 

After analysing the compliant, I decided to investigate whether the municipality irregularly shortlisted and appointed Mr. Mashamaite to the position of Deputy Manager: Corporate Services without following proper recruitment processes and whether the complainant and other applicants suffered prejudice as a result of the alleged irregular appointment of Mr Mashamaite. 

 

I found that the municipality irregularly shortlisted, interviewed and appointed Mr. Mashamaite to the position of Deputy Manager: Corporate Services without meeting the minimum requirements. I also found that the complainant and other applicants suffered prejudice as a result of the irregular appointment of Mr Mashamaite.

 

To remedy this improper conduct and maladministration, I directed the Executive Mayor to take appropriate steps in respect of disciplinary action against the Acting Municipal Manager, Ms. Molala for the irregular appointment of Mr. Mashamaite as the Deputy Manager: Corporate Services, in terms of disciplinary procedures of the Municipality envisaged in section 67(1)(h) of the Municipal Systems Act and section 171(4) of the MFMA within sixty (60) business days from the date of receiving my report.

 

The Executive Mayor must also conduct an analysis and evaluation of Mr. Mashamaite’s qualifications, experience and competence against the requirements and job description of the position of an Acting Divisional Head – Parks and Recreation that he occupied within sixty (60) business days from the date of receiving my report.

 

The Executive Mayor must further submit a report to the Municipal Council within sixty (60) business days of the date of receiving my report for a decision on the matter and take appropriate steps to institute proceedings for the judicial review of the irregular appointment of Mr. Mashamaite, within sixty (60) business days from the date of receiving my report.

 

The Municipal Manager must consider the report of the Executive Mayor referred to above and take a resolution on the matter within sixty (60) business days from the date of receiving my report.

 

 

Van Schalkwyk v City of Tshwane (Report No. 2 of 2020/21)

 

I investigated allegations of irregular billing and improper prejudice by the City of Tshwane Metropolitan Municipality against Ms. Gerda van Schalkwyk. Ms. Van Schalkwyk alleged in her December 2018 complaint that the city unduly delayed to provide her with accurate billing and that the undue delay caused her to suffer improper prejudice.

 

She alleged that her daily water consumption escalated to 26.52kilolitre per day on 22 July 2015 from the regular 4.74 kilolitre per day. Her last statement was recorded on the 2 July 2015. On 2 October 2015, ninety two (92) days later, she received a statement of account, with actual water readings of an amount of R167 900.81.

 

Upon realising that the water usage was out of her normal monthly water consumption, she considered other reasons for the excessive consumption. The water meter was situated almost 40 meters in the street behind the property. After her initial investigation, the she obtained the services of a plumber who does leak detection on properties. The leak detection was done on 4 November 2015 and the leak was found and repaired. The leak was underground, hence she had no knowledge thereof. 

 

She informed my office that it was only as a result of the city’s actual water consumption invoice of 2 October 2015 that she became aware of the leak. She submitted furthermore that, had she received accurate billing from the city, she would have realised that there was a leak on the property and she would have repaired same within 33 days. 

 

She complained that she ended up with a water bill of R258 796.00 by 14 December 2015. She lodged a dispute with the city and received 50% relief which left her with a huge bill in excess of R130 000.00 to pay. 

 

After analysing the complaint, I decided to investigate whether the city had unduly delayed to provide Ms. Van Schalkwyk with accurate water billing and if so, whether her excessive water account could have been avoided if regular billing was taken and whether she suffered prejudice as a result of the conduct of the city. 

 

Both allegations were substantiated. The city failed to issue the Complainant with accurate water consumption bills. She was provided with estimated readings instead of actual readings. The accurate bills were issued to her on 12 January 2015 and 02 October 2015.

 

The city’s officials recorded monthly water meter readings, but failed to provide the accurate billing to the Complainant. Had the city issued accurate and regular bills to the Complainant, she could have attended to the invisible and underground water leakage on her property and avoided the excessive billing.

 

I established that water meter was not situated on Ms. Van Schalkwyk’s property, but nearly 40 metres away. The meter is situated in the street behind her property. The leak was on her property but underground and therefore not visible to her. As a result, she could not have known or realised that water was being lost. Had the city provided regular and accurate accounts, she could have picked up the water loss and rectified it. 

 

The nearly seven (7) month period that it took the city to provide accurate and regular billing prevented Ms. Van Schalkwyk from establishing that she had an internal leak on the property and delayed her from rectifying the leak. The city also charged her interest on the account in the amount of approximately R30 000.00 and the leaked water was also charged at the highest step of the sliding scale tariff.

 

The city has a discretion to provide financial relief or write off the account. Even though the city gave Ms. Van Schalkwyk a 50% discount, she still suffered financial prejudice amounting to approximately R130 000.00 for water lost through the undetected leakage. 

 

To remedy this improper conduct, maladministration and improper conduit, I direct the City Manager to, within a month of the date of this report, tender a written apology to Ms. Van Schalkwyk for the city’s failure to provide her with accurate and regular statements of her account. 

 

The City Manager must also prepare a submission setting out the reasons of the debt to Council, including this report, for consideration for the outstanding debt of this account to be written off in terms of the city Credit and Debt collection policy. 

 

Omar and others v the Standing Committee for Refugee Affairs (Report No. 3 of 2020/21)

 

I investigated allegations of undue delay by the Standing Committee for Refugee Affairs (SCRA) in finalising the adjudication process of certification applications. This was systemic investigation following receipt of numerous complaints relating to the alleged undue delay by the SCRA to process and adjudicate on the certification applications.

 

The investigation focused on whether the SCRA unduly delayed the processing and adjudication of the Complainants’ applications made in terms of section 27(c) of the Refugees Act 130 of 1998 and its Regulations and whether the Complainants were improperly prejudiced by the conduct of the SCRA.

 

I found that indeed the SCRA unduly delayed the processing and adjudication of the Complainants’ applications made in terms of section 27(c) of the Refugees Act 130 of 1998 and its regulations.

 

My investigation revealed that the SCRA has systemic administrative deficiencies in processing and adjudicating the Complainants’ applications made in terms of section 27(c) of the Refugees Act 130 of 1998 and its Regulations.

 

The SCRA is not sufficiently resourced and funded to handle the volume of work it is currently dealing with. It takes very long for the DHA to respond to the request from the SCRA to be furnished with the file contents of the applicants. 

 

The archives and Registry where the refugee files are kept is far and this adds on to the constraints that the SCRA has, for an example, the SMT referred to one case where it requested file contents from the Refugee Office in 2010, and by 03 August 2018, they had not received the file contents. The SCRA, supported by the Minister, conceded to my findings.

 

I further found that the complainants were improperly prejudiced by the conduct of the SCRA. Had the SCRA adjudicated the applications of the complainants timeously, they would have qualified to immediately apply for the Permanent Residence Permits (PRPs). 

 

After five (5) years of being issued with PRPs, the complainants would probably have been eligible to apply for naturalisation in terms of section 5(1) (c) of the Citizenship Act No. 88 of 1995. 

 

In terms of section 19(3) of the Constitution, every citizen has the right to vote in the elections. The complainants who would have been naturalized South Africans, would have been eligible to participate in both the Local Government as well as the National Elections.

 

Regarding remedial action, the Minister and the Acting Director-General (ADG) must, within 21 working days of the issuing of this report, ensure that the Chairperson of the SCRA and the current two (2) members (the backlog team), commence working on the backlog to finalise all certification, litigation and withdrawal of status applications.

 

The Minister must, within 45 working days of the issuing of this Report, capacitate the SCRA with the appointment of an additional four (4) members to enable it to be equal to the amount of work it receives.

 

The ADG must, within 60 working days of the issuing of this Report, ensure that all refugee records pre-dating 2016, are loaded onto the NIIS to enable the backlog team to discharge its functions without delay.

 

The ADG must; within 45 working days of the issuing of this Report, capacitate the SCRA by appointing additional administrative support staff to enable it to be equal to the amount of work it receives.

 

The ADG must, within 30 working days form the date of the issuing of this Report, consider appointing into positions of Refugee Status Determination Officers (RSDO’s), legally qualified officials to ensure that the cases reviewed by the SCRA are minimal. 

 

The Chairperson of the SCRA must, within 30 working days from the date of this Report, apologise in writing to the Complainants for the delay in adjudicating their matters, and give them the dates upon which their matters will be finalised.

 

The Chairperson of the SCRA must ensure that, going forward, all new certification applications are finalised within six (6) months from the date of receipt by the SCRA as undertaken by the SCRA.

 

The Chairperson of the SCRA must ensure that, going forward, all new applicants whose applications are not finalised within six (6) months from the date of receipt by the SCRA, are given full progress reports on the status of their applications every six (6) weeks until their applications are finalised.

 

 

Smith v Kai! Garib Local Municipality (Report No. 6 of 2020/21)

 

 

I investigated allegations of improper conduct and maladministration in relation to the appointment of Mr. Willem Rhyn as Water Process Controller Class I by the Kai! Garib Local Municipality in the Northern Cape.

 

The investigation followed a July 2016 complaint by Mr. AR Smith, who alleged improper conduct and maladministration by the municipality in relation to the appointment of Mr Willem Rhyn as Water Process Controller Class I.

 

Following an analysis of the complaint, I decided to look into whether the temporary appointment of Mr. Rhyn as Water Process Controller Class I by the Municipality with effect from 1 July 2016 to 28 February 2017 was in accordance with the relevant laws and prescripts regulating the recruitment and selection of staff of the municipality; and if not, whether the conduct of the municipality was improper, constitutes maladministration and resulted in irregular expenditure.

 

I also investigated whether the permanent appointment of Mr. Rhyn by the municipality as Process Controller Class II with effect from 1 March 2017 was in accordance with the relevant laws and prescripts regulating the recruitment and selection of staff of the Municipality; and if not, whether the conduct of the municipality was improper, constitutes maladministration and resulted in irregular expenditure.

 

I found that all of the allegations were substantiated. To remedy this improper conduct and maladministration, I direct the Municipal Manager to take appropriate steps in respect of disciplinary action against the officials that were involved in the irregular appointment of Mr. Rhyn in terms of the disciplinary procedures of the Municipality envisaged in the Municipal Systems Act and the MFMA within sixty (60) business days from the date of my report.

 

The Municipal Manager must further institute proceedings for the judicial review of the irregular appointment of Mr. Rhyn within sixty (60) business days from the date of my report.

 

Tiyeka and others v Directorate: Priority Crime Investigation (Report No. 7 of 2020/21)

 

I investigated allegations of improper conduct and maladministration by the Directorate: Priority Crime Investigation (DPCI) of the South African Police Service relating to the appointment of staff.

 

The investigation was based on a complaint lodged on 28 January 2019 by Detective Warrant Officer (D/WO) M. Tiyeka, D/WO N. Vumazonke, D/WO N. Mcetywa and Detective Sergeant (D/SGT) M. Sonjani of the DPCI. They alleged that the DPCI conducted an improper recruitment and selection process in filling several vacancies of Warrant Officer, Lieutenant and Captain, resulting in them not being appointed and therefore prejudiced.

 

On analysis of the complaint, I decided to investigate whether the recruitment and selection process followed by the DPCI for the posts of Lieutenant under reference number DPCI/ACI/EC/2 complied with the SAPS National Instruction 6 of 2005; whether the recruitment and selection process followed by the DPCI for the posts of Captain under reference number DPCI/EC/447/2016, complied with the SAPS National Instruction 6 of 2005; and whether the recruitment and selection process followed by the DPCI for posts of Warrant Officer under reference number DPCI/EC/286/2016 complied with the SAPS National Instruction 6 of 2005.

 

I have decided to close this investigation. This was because the Independent Police Investigation Directorate is currently investigating alleged fraudulent documentation sent to the Complainant relating to the post of Lieutenant under reference number DPCI/ACI/EC/2, and as such I could not make a determination on the matter.

 

Further, General Lebeya has already implemented the appointment of D/WO N Mcetywa and D/WO M Tiyeka to the rank of Captain as redress to their complaint with effect from 1 April 2017, which was the issue under investigation under reference number DPCI/EC/447/2016.

 

In addition, the records of the Selection Panel clearly indicate that D/Sgt Sonjani was rated as 9th out of 11 candidates and was therefore not recommended for the post reference number DPCI/EC/286/2016. Although the then National Head of DPCI, did not sign the Panel Recommendations document, the subsequent appointment of Sergeants Kem and Lulwandle as the two highest scoring candidates were not irregular as such administrative functions may be lawfully delegated by the National Head. 

 

Lastly, on 19 August 2020, the investigating team consulted with all Complainants to discuss the discretionary letters issued on 13 August 2020 informing them of the intention to close the file. During this consultation all indicated their satisfaction with the outcome and had no further inputs to make.

 

I now hand over back to the Public Protector to take you through the rest of the reports. Thank you. 

 

 

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Jankielsohn v Magashule (Report 91 of 2019/20)

 

I investigated allegations of a violation of the Executive Ethics Code by the former Premier of the Free State, Mr. Elias Sekgobelo “Ace” Magashule.

The investigation was prompted by a complaint from Hon. Rob Jankielsohn, MPL, who alleged Mr. Magashule twice misled the Provincial Legislature in his written responses to questions from Members of the Legislature.

 

The first instance relates to the involvement of the Office of the Premier in the funeral arrangements of the late MEC of Health Ms. Fundiswa Ngubentombi while the second concerned a forensic report in connection with the appointment of Letlaka Communications by the Office of the Premier. 

 

According to Hon. Jankielsohn, in his reply to the question paper of 20 November 2013 regarding the funeral costs of Ms. Ngubentombi, Mr. Magashule asserted that the extent of involvement of the Office of the Premier was merely to inform relevant ministries, departments and persons of the details of the official funeral.

 

Hon. Jankielsohn argued that, in a letter from the former Director-General in the Office of the Premier to the Municipal Manager of the Fezile Gabi District Municipality, the extent of involvement included instructing inter alia the municipality to undertake costs which would be refunded by the provincial government, specifically the Department of Public Works and Infrastructure. 

 

Accordingly, the complainant contended that the former Premier blatantly misled the legislature in his reply concerning the involvement of his office in the funeral arrangements as well as the commitment by his office to ensure that the provincial government refunds the municipality. 

 

Hon. Jankielsohn also stated that during a sitting of the legislature on 21 May 2015, Mr. Magashule denied any knowledge of a National Treasury Report regarding the appointment of Letlaka Communications by his office. This was in reply to questions relating to the report.

 

He argued that in two replies from former Ministers of Finance on 15 November 2013 and 14 August 2015, respectively, Mr. Magashule was made aware of the report and refused to act on the recommendations by the Ministers to take criminal action against implicated individuals. 

 

The former Premier was alleged to have also denied knowledge of the report and recommendations of the ministers in a reply dated 30 September 2015. In my investigation of the allegations, I looked into the following three issues:

 

a) Whether Mr. Magashule, in his capacity as the former Premier of the Free State, made a misleading statement to the Provincial Legislature in his response to the question relating to the funeral arrangements of the late Ms. Ngubentombi and in so doing violated the Ethics Code;

 

b) Whether Mr. Mashinini, in his capacity as the MEC for Public Works and Infrastructure, made a misleading statement to the Provincial Legislature relating to the funeral arrangements of  Ms. Ngubentombi and in so doing violated the Ethics Code; and

 

c) Whether Mr. Magashule made a misleading statement to the Provincial Legislature in his response to questions posed in the legislature relating to the findings and recommendations made in the JGL Forensic Services investigation report, as well as recommendations made by the Minister of Finance in respect of allegations of irregularities associated with contracts entered into between his erstwhile office and Letlaka Communications, thereby violating the Ethics Code. 

 

My investigation revealed that the former Premier did not blatantly mislead the legislature in his reply concerning the involvement of his office in the funeral arrangements as well as the commitment by his office to ensure that the provincial government refunds the municipality. The allegation is unsubstantiated. 

 

In his written reply, Mr. Magashule confirmed what was already known, which was that the Department of Public Works and Infrastructure would be responsible for the expenditure of the funeral, that the extent to which his office was involved in the arrangements was informing relevant ministries, departments and persons of the details of the official provincial funeral as declared by the presidency.

 

His office’s involvement was also in terms of the Ministerial Handbook to announce the demise of Ms. Ngubentombi and instruct those concerned to commence with the immediate implementation of the procedures in the policy and lastly to advise Hon. Jankielsohn to direct his questions relating to cost to the responsible department. 

 

As alluded to by Hon. Jankielsohn, the former Premier’s response may have been somewhat vague and to an extent inadequate, but cannot be regarded as evasive and/or misrepresenting the facts and as such, it could not be established that the former Premier deliberately or inadvertently misled the legislature.

 

I found that Mr. Mashinini misled the legislature in response to the question of Hon. Jankielsohn relating to the funeral arrangements of the late Ms. Ngubentombi. In his reply to the question of Mr. Jankielsohn on whether his department would refund the Fezile Dabi District Municipality for the cost incurred for the funeral of Ms. Ngubentombi, MEC Mashinini stated in a written reply that his department did not commit to refund the costs incurred for the funeral to municipality. 

 

Contrary to this assertion, the DG in the Department of the Premier, instructed the municipality to inter alia liaise with the Public Works and Infrastructure department with regard to expenditure relating to logistical arrangements for the funeral of the late MEC. In addition, the Head of the Public Works and Infrastructure Department, Mr. M.W. Seoke approved a submission by the Chief Financial Officer which stated specifically that the cost of the funeral was to be borne by the Department of Health and Public Works and Infrastructure, and that the municipality would have to claim against the provincial government for logistical arrangements for the funeral. 

 

Mr. Mashinini stated that he responded to Hon. Jankielsohn, with information as received from the Head of Department and that he was later informed by the former Premier that his reply to the question was factually incorrect. He submitted that although the information he provided was incorrect, he did not wilfully mislead the legislature in breach of the Ethics Code. 

 

I found that, by providing inaccurate information to the legislature, Mr. Mashinini inadvertently misled the legislature and  therefore breached section 136(1) and section 133(3)(a) of the Constitution. The MEC also breached paragraph 3.1 and 3.7 of the Code of Conduct and Ethics for Members of the Provincial Legislature.

 

Lastly, I found that Mr. Magashule did not mislead the Provincial Legislature by denying any knowledge of the report by JGL Forensic Services as well as the recommendation of the Ministers of Finance. 

 

It was established during the Question and Answer session in the Provincial Legislature that a misunderstanding occurred between members concerning the National Treasury report. Three versions of the report were in circulation. One of the versions was leaked.  

 

The former Premier’s responses to questions was formulated with the view to ascertain which version of the report was being referred to in light of the possibility that it may be the leaked version. In this regard, his reply cannot be construed as misleading in any way, given the context in which it was provided. 

 

Moreover, it was established that the former Premier acknowledged rather than denied having access to the National Treasury report and therefore could not be found to have mislead the legislature.

 

It was established that the former Premier conceded to denying having knowledge of the recommendations to lay criminal charges against officials implicated in the National Treasury report by the former Ministers of Finance during a sitting of the legislature.

 

When the aforesaid recommendations were communicated in the legislature, the former Premier did not have access to the report until the following year. Upon receipt of the report, the former Premier communicated his discontent with the investigation process as well as the JGL Forensic Services which conducted the investigation. 

 

Following the failure of the National Treasury to consider and examine these areas of dissatisfaction, the former Premier escalated his discontent to the former Minister of Finance, Mr. Nene advising him that due to these unresolved issues and other shortcomings of the report, he was unable to lay criminal charges against officials. 

 

Accordingly, it could not be established that the former Premier deliberately or inadvertently misled the President, or the Premier or, as the case may be, the legislature nor could it be established that he acted in a way that was inconsistent with his position.  

Regarding remedial action, the current Premier of the Free State must take cognisance of the findings of a violation of the Constitution and the Ethics Code by MEC Mashinini to ensure that such conduct is not repeated and take appropriate corrective action to prevent a recurrence. 

 

The Premier must within reasonable time but no later than 14 days after receiving this report, submit a copy and any comments thereon, together with a report on any action taken or to be taken in regard thereto to the legislature.

 

Holomisa v Public Investment Corporation (Report No. 118 of 2019/20)

 

I investigated allegations of maladministration and improper conduct in connection with the failure by the Public Investment Corporation Limited (PIC) to implement recommendations made in the Gobodo Forensics And Investigative Accounting (Pty) Limited’s forensic investigation report.

The investigation followed a May 2016 complaint the Leader of the United Democratic Movement (UDM) and Member of Parliament, Mr Bantu Holomisa.

 

Mr Holomisa based his request for an investigation on the recommendations made in the Gobodo Forensic and Investigative Accounting (Pty) Ltd’s Draft Forensic Investigation Report issued on 7 August 2015, following an investigation into allegations of impropriety on the part of the PIC and/or its employees relating to the corporation’s investment of seventy five million rand (R75 million).

 

He requested that an investigation with a view to determining whether the PIC, an entity which is entrusted with managing public monies on behalf of government employees, Judges, Members of Parliament and others who are paid from the public purse, had indeed implemented the recommendations made in the Gobodo forensic investigation report.

 

After analysing the complaint, I decided to look into whether the PIC implemented recommendations made in the Gobodo Forensic and Investigative Accounting (Pty) Ltd’s forensic investigation report, and if not so, whether the failure by the PIC to implement the recommendations caused the corporation to incur irregular expenditure.

 

I found that the allegation that the PIC did not implement the recommendations made in the Gobodo Draft Forensic Investigation Report issued on 7 August 2015, is not substantiated.

 

Information obtained during the investigation indicated that, Mr Madavo was subjected to a disciplinary process for his failure to execute his duties with due diligence in connection with the SacOIL transaction as recommended in the Gobodo draft forensic investigation report.  

 

This information also indicated that the PIC subscribed to one hundred eleven million, nine hundred and forty thousand two hundred and ninety eight (111 940 298) ordinary shares at a share price of R0.67, which amounted to approximately R75 million, which illustrates that neither the Public Investment Corporation nor the GEPF incurred any losses

 

It was noted that the PIC obtained legal advice from its Legal Department in connection with a recommendation that the corporation must consider obtaining a legal opinion on the appropriate steps to be taken against an employee who traded in SacOIL shares on the basis of him having price sensitive inside information. 

 

This information further indicates that, the PIC has since revised its Code of Ethics Policy, as well as its Disciplinary Policy with a view to encouraging its Directors, as well as its employees at all levels to apply due diligence procedures with a view to eliminating as far as reasonably possible the risk of its clients incurring losses due to, inter alia, theft, fraud, dishonest acts, poor administration, negligence, professional misconduct or culpable omissions. 

 

In the circumstances, I am inclined to conclude that the PIC implemented the recommendations made in the Gobodo Forensic Investigative and Accounting (Pty) Ltd’s forensic investigation report. As a corollary to this, I am not making a finding and taking any appropriate remedial action as envisaged in the Constitution and the Public Protector Act.

 

Van Dalen and another v Department of Energy (Report No. 148 of 2019/20)

 

I investigated allegations of maladministration and improper conduct in connection with the decision by the former Minister of Energy, Ms Tina Joemat-Pettersson to approve the sale of ten (10) million barrels of the strategic fuel reserves held by the Strategic Fuel Fund Association (SFF).

 

This followed complaints lodged by the Democratic Alliance Member of Parliament, Mr Pieter van Dalen and the Freedom Front-Plus Member of Parliament, Adv. Anton de Waal Alberts on 31 May 2016 and 01 June 2016 respectively.

 

They alleged that, the decision by Ms Joemat-Pettersson, who was the Minister of Energy at the time, to approve the sale of ten (10) million barrels of the strategic fuel reserves held by the SFF in a closed bidding process in 2015 and 2016, which was kept as South Africa’s reinsurance policy in the event of a sudden fuel crisis, was irrational and in contravention of the provisions of section 54(2)(d) of the Public Finance Management Act No.1 of 1999, as well as the Central Energy Fund Act No. 38 of 1977.  

 

Based on an analysis of the complaints, as well as media reports covering concerns raised in connection with the manner in which the disposal of the strategic fuel reserves was conducted and the information that came to my attention from various sources, the following two issues were identified to inform and focus the investigation: 

 

a) Whether the decision by the former Minister of Energy, Ms Joemat-Pettersson, to approve the sale of ten (10) million barrels of the strategic fuel reserves held by the SFF was rational, and if not so, whether the conduct constituted maladministration and improper conduct; and 

 

b) Whether the sale of ten (10) million barrels of the strategic fuel reserves held by the SFF was conducted in accordance with legislation regulating the disposal of significant assets and any other prescripts applicable to the SFF, and if not so, whether the conduct constituted maladministration and improper conduct.

At the time of the disposal of the strategic fuel reserves, the Strategic Fuel Fund Association did not have a policy regulating the rotation and sale of the fuel reserves. It is therefore essential that, the Strategic Fuel Fund Association develops a Rotation and Sale of Strategic Stock Policy and submit same to the Strategic Fuel Fund Association’s Board of Directors for consideration whereafter it can be submitted to the Minister of Mineral Resources and Energy. 

 

Following the lodging of complaints by Mr Van Dalen and Adv. Alberts, Mr Gamede and the former Chairman of the Central Energy Fund Group Board of Directors, Mr Riaz Jawoodien, resigned from their positions with immediate effect following a debacle over an unauthorised bid for Chevron SA by the Strategic Fuel Fund Association‚ without seeking nor obtaining permission from the shareholder as required by the provisions of the Public Finance Management Act, 1999.

 

The former Chairperson of the Central Energy Fund Group Board of Directors, Mr Luvo Makasi, has filed an Application under Case Number 21771/2018, in the Western Cape Division of the High Court, seeking an order setting aside the decisions to conclude agreements and transactions entered into between the Strategic Fuel Fund Association and service providers following the sale of the strategic fuel reserves.

 

The sale of the strategic fuel reserves is also a subject of an advanced investigation currently conducted by the South African Police Service’s Directorate of Priority Crimes Investigations (DPCI) Serious Economic Offences Unit in the Gauteng and Western Cape Provinces respectively.

 

In terms of section 7(1)(a) of the Public Protector Act, the Public Protector had to determine on the basis of what was found from the preliminary investigation, how the matter should be dealt with.

 

The issues raised by the Complainants are currently a subject of litigation in the Western Cape Division of the High Court under Case Number 21771/2018. As a corollary to this, I took a conscious decision to allow the judicial process to take its course and for the court to make a competent pronouncement on the matter, which the Public Protector would by law be bound to in any event.

 

Further that, the pursuance of the matter and remedial action that I may consider should adverse findings be made from a further investigation will serve no judicious purpose on the basis that, the Accounting Authority and the Chief Executive Officer of the Strategic Fuel Fund Association would not be able to take any action against the former Chief Executive Officer of the Strategic Fuel Fund Association, Mr Sibusiso Gamede since he is no longer in the employ of the Strategic Fuel Fund Association.

 

I am referring this matter in terms section 6(4)(c)(ii) of the Public Protector Act,  to the  Directorate for Priority Crime Investigations to determine whether the former Chief Executive Officer of the Strategic Fuel Fund Association, Mr Sibusiso Gamede or any person may have committed an offence.

 

In light of the above, I am neither making a finding nor taking remedial action as contemplated in section 182(1)(c) of the Constitution, 1996.

 

 

 

Mothobi v North West Parks Board (Report No. 153 of 2019/20)

 

I investigated allegations of maladministration and improper prejudice by the North West Parks Board (NWPB) in relation to the suspension and subsequent dismissal of the former Chief Executive Officer, Mr. Edward Mothobi. This was after he made a protected disclosure as contemplated in the Protected Disclosures Act (PDA). 

 

The NWPB is a Schedule 3 Public Entity established in terms of the Public Finance Management Act, 1999 (PFMA) and Public Service Act, 1994 (PSA). 

 

Mr. Mothobi lodged the complaint with my office on 21 February 2019, alleging that he was victimized by the NWPB after he made the protected disclosure, resulting in his suspension and subsequent dismissal.

 

In the main, he alleged that the NWPB, in protecting a then sitting member of its board, one Dr. Hector Magome, and supported by the former MEC Manketsi Tlhape, improperly suspended and subsequently dismissed him in retaliation to a protected disclosure he had made to a Member of the Executive Council, regarding suspected corruption, conflict of interest and irregularities within the NWPB. 

 

The investigation further dealt with the allegation that the Executive Council Cluster Committee on Economic and Infrastructure Development (EXCO EID Cluster Committee) failed to implement the resolutions flowing from the submission of a memorandum recommending implementation of the legal and financial due diligence report of 2007 by Mape Inc. Attorneys.

 

Following a thorough analysis of the complaint, I decided to investigate whether the NWPB improperly handled Mr. Mothobi’s protected disclosure which he made in terms of the Protected Disclosures Act (PDA) to the MEC regarding suspected corruption, conflict of interest and irregularities within the NWPB, resulting in his suspension and subsequent dismissal.

 

I also looked into whether the EXCO EID Cluster Committee failed to implement the resolutions flowing from the submission, by the Complainant, of a memorandum dated 12 June 2017 recommending the implementation of the legal and financial due diligence report by Mape Inc. Attorneys of 2007 and, in the circumstances, Mr. Mothobi was prejudiced as a result of the conduct of the NWPB.

 

I found that indeed the NWPB improperly handled Mr. Mothobi’s protected disclosure made in terms of the PDA to the MEC regarding suspected corruption, conflict of interest and irregularities within the North West Parks Board, resulting in his suspension and subsequent dismissal.

 

I also found that the EXCO EID Cluster Committee failed to implement the resolutions flowing from the submission of a memorandum dated 12 June 2017, Mr. Mothobi recommending the implementation of the legal and financial due diligence report by Mape Inc. Attorneys of 2007. In addition, I found that Mr. Mothobi was prejudiced as a result of the NWPB’s conduct.

 

 

Although evidence before me clearly indicates that Mr. Mothobi was dismissed as a result of the disclosure, I cannot turn a blind eye to the fact that, through a Settlement Agreement concluded at the Commission for Conciliation, Mediation and Arbitration (CCMA) on 7 August 2018, he acceded to the substantive fairness of his dismissal, meaning that he did not dispute the charges preferred against him. 

 

He did not advance any reasons why he signed the Settlement Agreement despite the fact that he was not present at the internal disciplinary hearing that resulted in his dismissal or the fact that he had raised a protected disclosure as a reason for his dismissal. It further came to my attention that he elected to proceed with the hearing at the CCMA on a day when his legal representative was not available. 

 

Although in signing the Settlement Agreement, he acceded to having committed misconduct, it is my finding that the disclosure that he has made (and not misconduct that he allegedly committed), was the dominant or most likely cause of the charges being brought against him and the subsequent dismissal. 

 

In terms of section 187(1) (h) of the Labour Relations Act (LRA) such a dismissal is regarded as automatically unfair and would ordinarily invoke the remedies provided for in section 193 of the LRA which includes either reinstatement, re-employment and/or compensation. 

 

The compensation awarded to an employee whose dismissal is found to be automatically unfair must, in terms of section 194(2) of the LRA be just and equitable in all the circumstances, but not more than the equivalent of 24 months' remuneration calculated at the employee's rate of remuneration on the date of dismissal. 

 

I am however bound by the rule of law to arrive at a sound and qualified finding. I am also bound to be mindful of what is fair and just under the circumstances. In executing my mandate in terms of the Constitution of the Republic as well as the Public Protector Act, I had to holistically take into cognisance all the information gathered throughout the investigation. 

 

It is of importance for me to reiterate that my investigation did not seek nor attempt to confirm the charges against Mr. Mothobi as the process has already unfolded at the CCMA. I however had to satisfy myself, in assessing the weight that the charges carry and the extent of the impact they may attribute to my findings on this investigation. 

 

I am therefore unable to establish an opportunity of remitting the matter for a re-hearing and/or recommend reappointment or reinstatement as this might result in the unintended review of the CCMA ruling. As for the Settlement Agreement itself including any other matter that arose within the CCMA, I express no further view of my own save to advise that Mr. Mothobi may approach the Labour Court for a judicial review should he still feel prejudiced by same. 

 

It is my well measured view that my decision should not be seen as a pronouncement on a question of law in the stringent sense of the word but rather a pronouncement of wrongdoing especially on the part of an organ of the state. 

 

As part of remedial action, I direct the MEC of Rural, Environmental and Agricultural Development to ensure that the resolutions taken (on 12 July 2017 at the Executive Council Meeting, 5/2017, held at Tusk Hotel in Taung) in respect of the “submission on due diligence report recommendations” are implemented within sixty (60) working days from the date of this Report. In addition, the Premier must ensure that the remedial action in (aa) is actioned accordingly.

 

Fritz v Hantam Local Municipality (Report No. 4 of 2020/21)

 

I investigated allegations of improper conduct and maladministration by the Mayor, Mr. R. Swartz and councillors H. De Wee, G. Gous and K. Alexander of Hantam Local Municipality in the Northern Cape relating to travel and subsistence allowances paid to them in May 2017. 

 

In a December 2017 complaint, Dr. Isak Fritz alleged that the mayor and the councillors misappropriated public funds by utilising the travel and subsistence (S&T) allowances that were paid to them for official purposes to attend the Provincial Conference of the African National Congress (ANC). 

According to Dr. Fritz, the mayor and councillors were invited to a provincial Social Development department workshop on its Social Relief Programme. The workshop was scheduled take place between 10 and 15 May 2015 in Colesberg. The dates of the workshop coincided with those of the ANC conference. 

 

Dr. Fritz further alleged that the workshop that the mayor and councillors were invited to, didn’t take place. The mayor and the councillors attended the ANC conference instead before making their way home.

 

It was Dr. Fritz’s contention that the mayor and the councillors attended the ANC conference at the expense of the ratepayers under the pretext of attending the workshop. 

 

Upon analysing the complaint, I decided to whittle down the investigation to two issues. The one was whether the mayor and the councillors acted in accordance with the relevant laws and prescripts regulating S&T allowances the municipality paid in respect of the trip the undertook to Colesberg in May 2017. 

The other issue was whether their conduct was improper, constituted maladministration and resulted in the misappropriation of public funds.

I found that, indeed, Mayor Swartz and Councillors De Wee, Gous and Alexander did not act in accordance with the relevant laws and prescripts regulating S&T allowances the municipality paid in respect of their trip to Colesberg. 

 

Mayor Swartz and Councillors Gous and Alexander were paid R2 700 each while Councillor De Wee was paid R6 324, 32. 

They did not inform the Acting Municipal Manager about the cancellation of the workshop. They also attended the ANC conference whilst in Colesberg at the expense of and failed to reimburse the municipality for the amount it paid them or a portion thereof.

 

Their conduct was improper, constituted maladministration and resulted in the misappropriation of public funds, fruitless and wasteful expenditure as contemplated in the Municipal Finance Management Act.

 

It may also constitute a breach of the Code of Conduct contemplated in the Local Government: Municipal Systems Act. This conduct constitutes improper conduct as envisaged in the Constitution and maladministration as contemplated in the Public Protector Act. 

 

To remedy this conduct, I direct the MEC for Cooperative Governance, Human Settlements and Traditional Affairs in the province to appoint a person or committee in terms of Item 14(4) of the Code of Conduct for Councillors to investigate whether the mayor and the councillors breached the Code of Conduct and if so to take action as contemplated in Item 14(2) against them. 

 

In addition, I direct the Municipal Manager to take appropriate steps in terms of the MFMA to recover the S&T allowance the municipality paid to the mayor and the councillors for the period 11 to 14 May 2017.

 

Both these directives must be effected within 60 business days from the date of this report.

 

I look forward to a constructive engagement with these findings from all the implicated parties. As I always say, adverse findings are meant to fix any gaps in the system so that we avoid a recurrence in the future. 

 

Remedial action on the other hand is meant to bring the complainant as close as possible to where they would have been had it not been for the maladministration, the improper conduct and the prejudice. This is critical because this institution is one of the most cost effective way of accessing justice.

 

This is the spirit in which I wish all parties receive these findings.

 

Thank you.

 

Adv. Busisiwe Mkhwebane

Public Protector of South Africa