Criminal case of contempt opened against Speaker of Dr. JS Moroka Local Municipality

A case for contempt of the Public Protector was opened on Tuesday, September 21, 2021 at Brooklyn Police Station in Pretoria against Speaker of Dr. JS Moroka Local Municipality in Mpumalanga, Ms. Dipuo Pearlygate Mahlangu. The case was opened under case number CAS 482/9/2021.

In terms of section 7(4) (a) of the Public Protector Act, read with section 7(5) of the same legislation, the Public Protector has the power to direct any person to submit an affidavit or affirmation or to appear before her to give evidence or produce any document in their possession or under their control, which has a bearing on a matter under investigation. The Public Protector may also examine such a person.

Section 11(3) of the Act provides that any person, who, without just cause, refuses or fails to comply with a direction of request under section 7(4) referred to above or refuses to answer questions put to them under that section or gives answer which they know to be false shall be guilty of an offense. Under section 11(4), a person convicted of such an offense shall be liable to a fine not exceeding R40 000 or imprisonment for a period not exceeding 12 months or both.

Ms. Mahlangu was served with subpoena notices on Wednesday, June 09, 2021; Monday, July 12, 2021; and Friday, September 03, 2021 to appear in person before the Public Protector on Friday, June 23, 2021; Tuesday, July 27, 2021; and Friday, September 09, 2021, respectively. She failed to avail herself on all three occasions.

No apology was received in respect of the first hearing. With regard to the second hearing, a WhatsApp text was received from her office, claiming she had been admitted to hospital. However, no medical certificate was provided. Neither was the name of the hospital specified. On the last attempt, an aide of Ms. Mahlangu’s contacted the Public Protector, informing the office that the Speaker could not attend as she had been summoned to Nelspruit by the African National Congress.

Ms. Mahlangu was due to give evidence and produce documents in relation to an investigation into allegations of the irregular appointment of Mr. B.M. Mhlanga as Acting Municipal Manager and maladministration levelled against him at all three hearings, which were to have taken place virtually. She had undertaken to provide a written report and documents on the information she presented during an earlier meeting with the Public Protector on Tuesday, May 18, 2021.

Public Protector Adv. Busisiwe Mkhwebane reiterates that, unlike ordinary investigation meeting requests, a subpoena carries with it legal implications and that, absent just cause, witnesses are compelled to comply with its provisions or face legal consequences.

“State functionaries need to understand that they are not entitled to opt in or out of our investigations at will. The Constitution of the republic enjoins other organs of state to support and assist the Public Protector to ensure the institution’s independence, impartiality, dignity and effectiveness. There are serious consequences for failure to cooperate and comply without just cause,” she said.