Public Protector Adv. Busisiwe Mkhwebane during a media briefing on Friday, April 29, 2022 in Pretoria
Statement by Public Protector Adv. Busisiwe Mkhwebane during a media briefing on Friday, April 29, 2022 in Pretoria.
Programme Director, Mr Oupa Segalwe;
Chief Executive Officer, Ms. Thandi Sibanyoni;
Acting Chief Operations Officer, Ms. Lethabo Mamabolo;
Chief of Staff, Mr Luther Lebelo;
Investigation staff of the Public Protector;
Members of the media;
Ladies and gentlemen;
Once again I wish to thank you for always availing yourselves to help amplify our voice as we report back to the people of South Africa on the investigation work they have entrusted us with.
By now everyone should be aware that we hold these briefing sessions in compliance with section 182(5) of the Constitution of the Republic, read with Section 8 of the Public Protector Act 23 of 1994.
Under these provisions, our investigation reports must be open to the public or any person, including complainants and implicated parties in the matters concerned. However, there is a proviso to the effect that such reports must only be publicised in the absence of exceptional circumstances requiring confidentiality.
We have the discretion to determine what we deem the most expedient method in terms of which to publish our findings. We may go the way of a press conference, as we hereby do, or we may use our website or simply issue a statement.
Today we release 10 reports and one intervention letter involving allegations of maladministration and improper conduct against Department of Health in Limpopo, the Public Investment Corporation, the Dawid Kruiper Local Municipality in the Northern Cape, the City of Johannesburg (COJ) in Gauteng, the Special Appeals Board, Pelchem, the former MEC for Human Settlements and Public Works in KwaZulu-Natal (KZN) and the South African Revenue Service (SARS).
These reports deal with our findings following several investigations into allegations of irregularly appointments of staff, improper funding of private business ventures using public assets invested with the PIC, failure to compensate members of the public for losses suffered in circumstances where government is liable and has a responsibility to assist, irregular billing for basic services, irregular termination of a special pension for veterans, failure to pay small business for services rendered, improper appointment of members of a Rental Housing Tribunal, victimisation of a whistle-blower and irregular procurement of goods and services.
Two of the reports are what we call Closing Reports. As previously explained, this refers to reports resulting from investigations based on allegations that were found to be unsubstantiated. An intervention letter, on the other hand, contains action we take in terms of section 6(4)(b)(iii) of the Public Protector Act, 1994 before or during an investigation to communicate a clear and simple cause of problems experienced as well as proposed or required improvements to the processes of a public body or authority, to address any systematic problems or trends identified.
Anonymous v Limpopo Department of Health (Report No. 06 of 2022/23)
We investigated allegations that the provincial Department of Health in Limpopo irregularly appointed Mr. S E Mphahlele to the position of Chief Executive Officer (CEO) at the WF Knobel Hospital in the province.
After investigating whether the department irregularly shortlisted, interviewed and appointed Mr Mphahlele to the position of CEO even though he allegedly did not meet the minimum requirements for the position, we found that the allegations were not substantiated and proceeded to close the matter.
Mahlangu v Public Investment Corporation (Report No. 01 of 2022/23)
We investigated allegations of maladministration and improper conduct relating to state-owned asset management company, Public Investment Corporation’s (SOC) Limited (PIC) failure to conduct due diligence prior to providing funding relating to a transaction involving a private company trading under the name, Daybreak Farms (Pty) Limited. The investigation followed a complaint lodged in September 2019 by Mr P L Mahlangu.
After investigating whether the PIC failed to conduct due diligence when providing funding to Daybreak through public funds which the state-owned asset management company administered on behalf of the GEPF, the UIF and the CCF, and if so, whether the conduct constituted maladministration and improper conduct, we found that the allegations were not substantiated and proceeded to close the matter.
REPORTS WITH ADVERSE FINDINGS
Human v State Security Agency (Report No. 09 of 2022/23)
I will not deal in detail with this report, safe to say, like the rest of them, a copy thereof will be accessible on our website this afternoon. I refer here to the report on an investigation into allegations of maladministration by the State Security Agency (SSA) relating to the termination of service of Mrs R Human and subsequent undue delay to properly re-instate her after her appeal was upheld by the Minister of State Security. We made findings and took appropriate remedial action in favour of the complainant in that matter.
Langalibalele and another v David Kruiper Local Municipality (Intervention)
We investigated allegations of failure by the Dawid Kruiper Local Municipality in the Northern Cape to compensate Ms Tununu Maria Langalibalele and Mr Mavela Mahlokomane for the loss of livestock in 2016. The investigation followed two complaints lodged in November 2019 by Ms Langalibalele and Mr Mahlokomane.
They alleged loss of livestock as a result of electrocution from a power line in the Hondejag area on 31 July 2016. Ms Langalibalele allegedly lost two goats, two sheep and one cow while Mr Mahlokomane was alleged to have lost four pregnant goats.
Ms Langalibalele and Mr Mahlokomane allegedly submitted claims to the municipality in August 2016. However, compensation for loss of livestock allegedly remains outstanding. They further alleged that the municipality compensated another person who had also lost livestock following the same electrocution incident.
We looked into whether the municipality failed to compensate Ms Langalibalele and Mr Mahlokomane for loss of livestock and if so, whether the conduct of the municipality was improper, constituted maladministration and prejudiced the complainants.
Based on the information obtained during the investigation, we concluded that Ms Langalibalele and Mr Mahlokomane did approach the municipality on 31 August 2016 to claim damages for their livestock loss, which constituted a liability against the municipality.
Their claim was referred to the municipality’s insurers 11 months after the electrocution of the livestock. The Municipal Manager at the time and the officials dealing with the claims for damages were responsible in terms of the section 63(1) of the Municipal Finance Management Act to properly manage the liability arising from Ms Langalibalele’s and Mr Mahlokomane’s claim.
The municipality delayed to submit Ms Langalibalele’s and Mr Mahlokomane’s claim to AoN South Africa (Pty) Ltd in order for them to timeously consider and process the claim. The undue delay by the municipality was improper and constitutes maladministration.
The conduct of the municipality in paying the other affected person, Mr Aobakwe Modise, R1 500.00 for the loss of his livestock was improper since the municipality failed to exercise any form of due diligence, as envisaged in section 195 of the Constitution, before taking the decision to compensate Mr Modise for loss of his livestock.
According to a lease agreement that Ms Langalibalele signed with the municipality, the municipality cannot be held liable against any loss of livestock suffered by the lessee.
Having assessed all the evidence and information before us, we found that there was no policy or internal controls in place at the municipality to deal with insurance claims against the municipality except that the municipality had appointed insurers to deal with claims against it.
In view of the above, we recommend in terms of section 6(4) (c) (ii) of the Public Protector Act that the Municipal Manager must:
- Develop, within sixty working days from the date of receipt of this letter, insurance claims processes and procedures to deal with all claims against the municipality;
- Ensure that all the officials of the municipality that are involved in the insurance claims process are properly trained on the legal prescripts regarding processing of claims against the municipality, within thirty working days from the date of this letter;
- Report to the Council of the municipality on the implementation of the remedial action referred to above, within sixty working days from the date of this letter; and
- Provide us with a report on the steps taken and the progress made within thirty working days from the date of this letter.
Nyathela v City of Johannesburg (Report No. 03 of 2022/23)
We investigated allegations of undue delay and maladministration with regard to irregular billing against the City of Johannesburg (COJ) in Gauteng. The investigation stemmed from a complaint that Mr Freddy Nyathela, President of the South African Roadies Association (SARA) lodged in January 2019.
Mr Nyathela alleged that he tried since 2005 to resolve SARA’s billing account with the COJ relating to water and electricity consumption, that he escalated the complaint in vain to the previous Executive Mayor, Cllr Amos Masondo and that he suspected the existence of an ulterior motive to dispossess him of the ownership of the property from which SARA operates.
He indicated that the property is situated in a prime location within the Newtown district of Johannesburg and went on to allege that there was an attempt by certain officials within or connected to the COJ to ensure that SARA closes down, with the ownership of the property the organisation operated from being taken from him.
He allegedly also submitted an application for SARA to be considered as a non-profit organization but that was not processed and/or the COJ had blatantly ignored his application for such.
According to Mr Nyathela, a meeting was held between SARA and COJ on 01 July 2011 whereby the COJ undertook to, within two days of their meeting, resolve his complaint by fixing a water leakage and faulty electricity meter, both of which led to high costs. However, COJ officials did not attend to his complaint as agreed.
In addition, Mr Nyathela allegedly approached the Ombudsman of the COJ on 25 May 2018 and lodged a complaint against the COJ business entities, being Johannesburg Water and City Power, over alleged irregular billing for water and electricity consumption.
He averred that the Ombudsman accepted his complaint and proceeded to investigate it. On 20 December 2018, he was provided with a response stating that Ombudsman’s investigation revealed that he was being billed on estimates for power consumption, that it was for longer than the Municipal by-laws allowed but that the COJ had subsequently reversed the charges and billed on actual readings.
Having analysed the complaint, we decided to investigate the following three issues:
- Whether the COJ irregularly billed SARA for water and electricity consumption based on estimates and failed to adjust the account;
- Whether reporting the complaint and seeking the intermediation of the Ombudsman was helpful to Mr Nyathela; and
- Whether the COJ’s undue delay in submitting SARA’s registration as a non-profit organisation to COJ’s Revenue Shared Services Centre (RSSC) had an impact on the billing of his account and thus prejudiced SARA.
On the first issue, we found that, indeed, the COJ irregularly billed Mr Nyathela/SARA. The COJ estimated the account previously and even though they informed the Ombudsman that they had reconciled the account, they ignored the interest incurred as a result of the incorrect billing.
The COJ provided a reconciled statement of account from the period December 2009 until January 2019 and failed to provide a statement of account from the date of occupation of the property, June 2005, as Mr Nyathela had requested.
In so doing, the COJ violated section 74(2)(a) of the Municipal Systems Act, which clearly states that the amount individual users pay for services should generally be in proportion to their use of that service.
The COJ contravened the Municipal Systems Act 32 of 2000 by not ensuring that where consumption for services had to be measured, Mr Nyathela/SARA’s consumption had to be measured using accurate and verifiable metering systems.
The COJ had a duty to inform Mr Nyathela/SARA of the costs involved in the service provision, the reasons for the payment of service fees, and the manner in which monies were raised from the service utilised. In this regard the COJ failed to comply with legal prescripts.
The COJ initiated the process of service disconnection despite the Mr Nyathela/SARA disputing the bill received from them, an indication that it had violated section 33 of the Constitution by carrying out disconnections in an unlawful manner.
In terms of Section 3 of the Promotion of Administrative Justice Act (PAJA), an administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair and that those affected must be given a reasonable opportunity to make representations.
On the second issue, we found that the Ombudsman did fail to properly investigate Mr Nyathela’s complaint effectively. The COJ Council established the Ombudsman for the sole purpose of being a neutral facilitator to provide confidential and impartial assistance in resolving grievances and complaints lodged with it against the COJ.
The Ombudsman must investigate any alleged act or omission or any attempt by an employee serving in the municipality which contravenes the provisions of section 8 of the Municipal Systems Act.
The Ombudsman has a duty to resolve all complaints received against the COJ and all its business entities in an unbiased manner and thoroughly scrutinise all complaints and allegations submitted without being selective on what issues to look at unless they are outside its mandate.
The office has to interrogate responses received from the COJ and must not just act as a conduit of information from the COJ business entities to complainants.
On the third issue, we found that the COJ’s undue delay in submitting SARA’s registration as a non-profit organisation to city’s Revenue Shared Services Centre (RSSC) had an impact on the billing of SARA’s account and thus prejudiced the organisation.
The COJ has a constitutional duty to ensure that any organisation is treated fairly in the day to day interactions with its various business units and see to it that there is fair treatment and processing of all business transactions between itself and its customers, including Mr Nyathela/SARA.
The COJ has to promote the social and economic development of every organisation within its jurisdiction; it should ensure that SARA’s submission to be considered as a Non-Profit Organisation was processed expeditiously, thereby promoting its objectives towards social and economic development.
In this regard it has failed to treat SARA, its customer, in a fair manner. The COJ should ensure that its relationships with non-profit organisations is strengthened. Only then will it be in a position to improve services for its residents and organizations.
SARA’s submission should have been processed speedily because it is one of the COJ’s objectives to promote the development of the community but evidence indicates that the submission was only processed recently.
To remedy this maladministration and improper conduct, we direct the Acting City Manager to do the following:
- Ensure that SARA’s account is brought up to date due to the fact that Mr Nyathela made payments but the COJ cannot properly allocate same because according to them, the cheque payments did not have any reference numbers to indicate the account number;
- Ensure that the COJ staff dealing directly and indirectly with consumers are retrained on the COJ service delivery ethos including the Batho Pele principles;
- Ensure that the COJ staff are retrained in the Consumer Protection Act, Municipal Finance Management Act, Municipal Systems Act and the Promotion of Administrative Justice Act.
- Ensure that there is customer care training to all staff including those employed at the Ombudsman’s office;
- Ensure that all business units within the COJ embark on an internal stakeholder training to prevent the continuous discord between the various business units; and
- Ensure that steps are taken to redress the continuous estimation of consumer accounts.
All of these must take place within 30 working days from the date of this report.
Sonto v Special Appeals Board (Report No 08 of 2022/23)
We investigated allegations of improper conduct and maladministration by the Special Pensions Appeals Board with regard to the termination of the special pension of Mr Mzunani Roseberry Sonto. The investigation was prompted by a complaint Mr Sonto lodged in May 2019.
Mr Sonto is a pensioner, a former member of the military wing of the African National Congress (ANC), Umkhonto Wesizwe (MK) and a former member of the National Assembly, who served in the latter capacity from 2010-2014.
In the main, Mr Sonto alleged that in 2004 he was awarded a Special Pension in terms of the Special Pensions Act, 1996 by the Special Pensions Board, and duly received a pension, until it was set aside in July 2017 by the Appeal Board.
He lodged an appeal with the Appeal Board in July 2014 for the reconsideration of his pensionable years of service, requesting that the seven years of service which had not been taken into account by the Special Pensions Board in 2004, be added to the five years of service the Board awarded to him in 2004. He requested that the Appeal Board should recognize and award to him 12 years’ pensionable service.
According to him, he submitted the required appeal application and annexures to support his application on or about 14 February 2012 to the Appeal Board. In July 2017, he received a letter, dated 27 July 2017, from the Appeal Board, advising him of the rejection of his appeal. In addition, the letter indicated that the 2004 decision of the Board, awarding him five years of pensionable service, was also set aside.
Mr Sonto alleged that some of the reasons for the cancellation of his pension were a lack of corroborating evidence that he had joined and served the ANC/MK internally or in Lesotho; or that he was ever in their full-time service during the anti-apartheid struggle, as well as a lack of official police or court records furnished by him to confirm that he stood trial for politically motivated offences or that he was ever detained or banned.
He alleged that the Appeal Board therefore concluded that it was improbable that he was ever restricted or banned, detained or imprisoned. He asserts that in coming to this conclusion, the Appeal Board had chosen to ignore press photographs and articles from the time describing him as a United Democratic Front leader and detainee.
Mr Sonto furnished us with records from the Goodwood Correctional Centre, indicating that in the 1980s he was arrested for politically motivated offences. He also submitted articles of the Cape Times newspaper and other media houses, dating back to the 1980’s.
According to him, although it has a duty to do so, the Appeal Board failed to question witnesses who would confirm the facts of his service, and also declined offers of testimony from those imprisoned with him, such as the former Minister of Finance, Mr Trevor Manuel.
He therefore alleged that the decision of the Appeal Board to cancel his Special Pension was irrational, arbitrary and unfair as the evidence he submitted to the Appeal Board refutes the basis on which it decided to cancel his Special Pension.
Having analysed the complaint, we decided to focus the investigation on whether the decision of the Appeal Board in setting aside Mr Sonto’s Special Pension was not in accordance with the relevant laws and prescripts and if so, whether its conduct was improper and constitutes maladministration.
We found that, indeed, the decision of the Appeal Board in setting aside Mr Sonto’s Special Pension was not in accordance with the relevant laws and prescripts.
The Chairperson of the Appeal Board ought to have known that in dismissing Mr Sonto’s appeal and setting aside the 2004 award of five years’ pensionable service, Mr Sonto’s vested rights would be adversely affected in that his special pension would be terminated by the Government Pensions Administration Agency.
Mr Sonto was not appealing or disagreeing with the decision of the Appeal Board but was merely applying for the extension of his pensionable years of service from 1971 to 1990, whereas the Board had decided to award only five years’ pensionable service to him.
The Appeal was lodged after more than 8 years instead of within 60 days, as provided by the Special Pensions Act, as amended. The Appeal Board had no authority or discretion to entertain Mr Sonto’s application for appeal. The decision of the Appeal Board was accordingly unlawful.
Accordingly, the conduct of the Appeal Board constitutes improper conduct as envisaged in the Constitution and maladministration in terms of the Public Protector Act. To remedy this improper conduct and maladministration, we direct the Minister of Finance to:
- Take the appropriate steps to take the decision of the Appeal Board of 12 July 2017, setting aside the Special Pensions Board’s 11 February 2004 award of a special pension to Mr Sonto on judicial review and to inform Mr Sonto accordingly, within 30 working days from the date of the report; and
- Apologise in writing to Mr Sonto for the prejudice he suffered as a result of the improper conduct of the Appeal Board, within 60 working days from the date of the report.
Motaung v Pelchem (Report No. 05 of 2022/23)
We investigated allegations of maladministration in the termination of a contract and the failure by state-owned entity, Pelchem, to pay for services rendered by a service provider, Lebitso Consulting Services (LCS). Pelchem is a wholly owned subsidiary of the South African Nuclear Energy Corporation SOC Limited (NECSA). NECSA is a PFMA Schedule 2 Major Public Entity.
The investigation arose from a complaint lodged in October 2019 by Mr R B Motaung. He lodged the complaint on behalf for the LCS. He alleged that Pelchem had requested the LCS to assist in sourcing candidates for a temporary position of Supply Chain Manager to be appointed on a three months’ contract.
According to Mr Motaung, the LCS submitted the names of three possible candidates to Pelchem. Out of the three, a certain Mr Archie Mbatha emerged as the preferred candidate. Subsequently, Pelchem’s Human Resources Administrator, Ms Khanyisa Maluleke, allegedly invited Mr Mbatha to assume duty as Supply Chain Manager on 21 June 2019. She allegedly did so through a WhatsApp text message.
Sunsequently, the LCS allegedly entered into a contract with Mr Mbatha to provide Supply Chain Management services to Pelchem, as the LCS had sourced him on behalf of Pelchem. Further, Ms Maluleke allegedly requested Mr Motaung to draft a contract to be entered into by Pelchem and the LCS. As Mr Mbatha’s agent, Mr Motaung drafted and signed the contract for Mr Mbatha to render Supply Chain Management services to Pelchem on 24 June 2019 and the contract was sent to Ms Maluleke.
Pelchem allegedly did not sign the contract and yet Ms Maluleke allegedly sent a WhatsApp text message to Mr Motaung, confirming that Mr Mbatha could assume duty on 21 June 2019.
Mr Mbatha allegedly provided Supply Chain Management services to Pelchem from 21 June 2019 to 31 July 2019. He allegedly submitted timesheets for work performed during that period. However, Pelchem allegedly refused to pay the LCS for services rendered by Mr Mbatha and instead terminated the services of Mr Mbatha on 31 July 2019, without providing reasons for such a termination to either Mr Mbatha or the LCS.
The LCS submitted invoices to Pelchem on 25 July 2019 for services rendered by Mr Mbatha. Despite following up with Pelchem employees Ms Maluleke, Zanele Mkhize, Lungisa Obose, Nonhlanhla Gumbi and Petrus Schutte, claims of just over R100 000 for services rendered from 21 June 2019 to 31 July 2019 in terms of invoices Pel006 and Pel007 and an additional R63 000 and R60 000 for August and September 2019 respectively for services that would have been rendered had Pelchem not improperly and prematurely terminated the contract, remain outstanding.
Having thoroughly studied the complaint, we decided to investigate whether Pelchem appointed the LCS and subsequently failed to pay for services rendered by Mr Mbatha on behalf of the LCS and whether the LCS or Mr Mbatha suffered any prejudice as a result of the alleged failure by Pelchem to pay for services rendered.
Our investigation revealed that, indeed, Pelchem failed to pay for services rendered by the LCS. Despite the fact that there was no appointment letter or contract entered into by the parties, the evidence in our possession clearly indicate that the LCS rendered a service to Pelchem for a month and that Pelchem was fully aware of the services being rendered during July 2019. In this regard, it can be said that Pelchem was improperly enriched through benefitting from the services rendered, but which were not paid for.
Mr Motaung could not have been expected to know whether internal processes at Pelchem had been complied with and as such he rendered services to Pelchem in good faith.
Section 50 of the PFMA, dealing with the “fiduciary duties of accounting authorities” provides that the accounting authority for a public entity must exercise the duty of utmost care to ensure reasonable protection of the assets and records of the public entity.
Accordingly, the former Managing Director of Pelchem, Mr I M Radebe, was required to ensure that there was a signed contract between Pelchem and the LCS. Such a violation by Pelchem amounts to improper conduct in terms of the Constitution and maladministration as envisaged in the Public Protector Act.
We further found that the LCS or Mr Mbatha suffered prejudice as a result of the failure by Pelchem to pay for services rendered. The LCS rendered services to Pelchem without receiving any payment. This amounted to Pelchem’s improper enrichment. Evidence in our possession, that is an email regarding the actual work done as well as timesheets that Mr Mbatha’s line manager signed and approved, substantiated the fact that the LCS had indeed rendered a service to Pelchem. Pelchem’s failure to pay the LCS for services rendered prejudices the LCS unfairly.
Pelchem’s conduct amounts to improper conduct in terms of the Constitution and maladministration as envisaged in the Public Protector Act.
To remedy this maladministration and improper conduct, we direct the Managing Director of Pelchem to:
- Within sixty working days of the date of the formal report, effect payment to the LCS for services rendered to Pelchem in accordance with invoices number Pel006 and Pel007, as submitted by the LCS to Pelchem and in terms of the of the PFMA;
- Within sixty working days of the date of the formal report, investigate and take appropriate steps in respect of disciplinary action against officials of the entity, in particular, Ms Maluleke in terms of the PFMA for advising the LCS to commence with work at Pelchem before the Managing Director had signed the LCS’s appointment letter and contract in order to comply with the Supply Chain Management Policy;
- Within sixty working days after the date of the formal report, ensure that all officials are trained in terms of Pelchem’s Supply Chain Management procurement processes, contract management and delegation of powers in accordance with the PFMA;
- Within thirty working days after the date of the formal report, review the practice of allowing staff to use their personal laptops, should this practice still persists and put measures in place to procure resources for staff in terms of the PFMA;
- Within sixty working days after the date of the formal report; review, approve and roll out the Information and Communication Technology and Security Policies to prohibit unauthorised use and access to undesignated persons to mitigate the risk associated with exposure of Pelchem to unauthorised persons, in terms of the PFMA; and
- Ensure that Pelchem’s Internal Audit Unit, on an annual basis, reviews the adequacy and effectiveness of the Pelchem’s system of internal control, risk management and Supply Chain Management, in terms of the PFMA.
Further, we directed the Chairperson of the Board of Pelchem to, within thirty working days of the date of the formal report, submit an implementation plan of the remedial action contained in the formal report.
Anonymous v Nkonyeni (Report No. 105 of 2021/22)
We investigated allegations of failure by the former MEC for Human Settlements and Public Works in KwaZulu-Natal (KZN), Ms P Nkonyeni, to comply with the provisions of the Rental Housing Act, 1999 in the appointment of members of the KZN Rental Housing Tribunal.
The investigation stemmed from an anonymous complaint lodged in January 2021, wherein it was alleged that the appointment of the members of the Tribunal was irregular as the advertisement for the positions did not comply with the requirements of the Act.
It was also alleged that the appointees were all lawyers and that the former MEC failed to consult with the KZN Portfolio Committee on Human Settlements before the appointments were made as the Act requires.
Having studied the complaint, we decided to focus the investigation on whether the former MEC failed to comply with the requirements of the Act when appointing the members of the Tribunal and if yes, whether the conduct of the former MEC was improper and constitutes maladministration.
We found that, indeed, the former MEC failed to comply with the relevant provisions of the Act when she appointed the Tribunal in December 2020. The composition of the Tribunal does not include sufficient expertise in rental housing matters or property management or housing development matters, or consumer matters pertaining to rental housing or housing development matters as section 9 (1) (b) of the Act requires.
The former MEC also did not consult with the Portfolio Committee before appointing the Tribunal as section 9 (2) (b) of the Rental Housing Act requires. The section provides that “The Chairperson and members of the Tribunal must be appointed only after – the MEC has consulted with the relevant standing or portfolio committee of the Provincial Legislature which is responsible for housing matters in the province.”
According to the Chairperson of the Portfolio Committee, the Committee was not advised in advance on the processes leading to the appointment of the Tribunal.
The Chairperson further stated that the Committee, as a collective, was not favoured with the advertisement for the Tribunal and nomination process thereof and that the Committee did not comment to the advertisement compliance as stipulated in the Act.
The Chairperson also indicated that the former MEC first mentioned the Tribunal to the Committee in January 2021 during a meeting.
The Chairperson conceded during the investigation that the appointment of the Tribunal was not in full compliance with the requirements of the Act, and further that the Committee did not participate in any way in this process, save to meet the Tribunal after its appointment.
Instead, the former MEC took the matter to the provincial Executive Council that did not consult in regard thereto, but simply appointed the nominees as the Tribunal.
The former MEC’s conduct was accordingly at variance with the provisions of the Act and therefore constituted improper conduct as envisaged in the Constitution and maladministration as envisaged in the Public Protector Act.
The Tribunal’s appointment is an administrative action. The fact that its appointment was not in accordance with the Act does not mean that it can simply be ignored.
In the case of Ouderkraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 SCA, the Supreme Court of Appeal authoritatively ruled that until an administrative decision is set aside by a court in proceedings for judicial review, it exists in fact and it has legal consequences that cannot simply be overlooked.
The principle enunciated in the Ouderkraal case was confirmed by the Constitutional Court in the case of The MEC for Health, Eastern Cape v Kirland Investments. That court was called upon to reconsider the correctness of the principle in Ouderkraal.
The court rejected this invitation and found that if public officials or administrators can, without recourse to legal proceedings, be allowed to disregard administrative actions by their peers, subordinates or superiors if they consider them mistaken, this would be a licence to self-help.
It would be inviting officials to take the law into their own hands by ignoring administrative conduct they consider incorrect. The court found that this would spawn confusion and conflict to the detriment of the administration and the public and that it would undermine the court’s supervision of the administration.
Consequently, it is not open to the current MEC and the department to simply ignore the appointment of the current Tribunal and to appoint another. A proper judicial review application has to be brought to firstly review the appointment and for the court to make an order that is just and equitable under the circumstances when the Tribunal that consists of members that were irregularly appointed has already taken several decisions as the Tribunal that has legal consequences.
To remedy this improper conduct and maladministration, the MEC for Human Settlements and Public Works must lodge a judicial review application for the review and setting aside of the appointment of the Tribunal as per the Ouderkraal case above, within 90 working days from the date of the report.
The MEC must also report to the Premier and Speaker of the KZN Legislature on the implementation of the remedial action taken above within 120 working days from the date of the report.
The Premier of KZN as the head of the provincial Executive Council, who appoints and assigns functions to MECs, should oversee the implementation of the report as per section 132 of the Constitution.
In compliance with section 136 of the Constitution, which requires MECs not to act in any way inconsistent with their office, the Premier must, within sixty working days from the date of the report, submit a plan of action to us on measures to ensure that there is continuous training / workshop programmes for MECs about their responsibilities to ensure that administrative actions taken are in accordance with provisions as prescribed by national legislations.
Wilkinson v City of Johannesburg (Report No. 7 of 2022/23)
We investigated allegations of occupational detriment and victimisation of whistle-blower, the late Ms Lorraine Wilkinson, leading to her dismissal by the City of Johannesburg (COJ). This followed a complained lodged in October 2019.
Ms. Wilkinson, who has since passed away, joined the COJ’s External Relations Division in 2005 after serving 25 years at the national and local spheres of government. At the time of her dismissal, she was within the Group Risk and Assurance Service as Unit Head of Strategic Management Services. Her responsibilities were advisory and she was also responsible for Finance, Business Planning and Performance Management and Administration.
In her complaint, she alleged that during 2014, a number of administrative irregularities within the COJ came to her attention. One of those was then City Manager, Mr Trevor Fowler’s extension of the employment contract for the Group Head: Ms Sinaye Nxumalo.
During September 2015, Ms Wilkinson allegedly handed a whistleblowing dossier and a group grievance which she had also signed to former Executive Mayor Parks Tau’s spouse. These were allegedly also submitted to Mr Fowler, through the South African Municipal Workers and Allied Union.
Whilst Mr Tau was attending to the disclosure, he was removed from his position as Executive Mayor as a result of the Local Government elections that took place on 3 August 2016. The disclosure file subsequently found its way to the newly elected administration under the leadership of former Executive Mayor Herman Mashaba who directed that a forensic investigation be conducted on the irregularities Ms Wilkinson reported.
A forensic company, KPMG, was assigned to conduct the investigations and one of the recommendations highlighted in the KPMG’s report was the protection of whistle-blowers.
When both protected disclosure documents (dossier) came to the attention of Ms Nxumalo, she allegedly called Ms Wilkinson and threatened her with investigation. Ms Wilkinson alleged that Ms Nxumalo victimised, intimidated and harassed her. In addition, Ms Wilkinson alleged that she was suspended, investigated and dismissed on trumped-up charges.
She then referred her dismissal to the South African Local Government Bargaining Council for Arbitration on the 23 December 2016. During the course of the arbitration in 2018, the Office of the City Manager and Labour Relations directed that the process should end as they had prepared a Settlement Agreement with her. However, nothing came of this as the draft Settlement Agreement was not signed.
Furthermore, Ms Wilkinson alleged that she suffered occupational detriment, as the result of undue delay to finalise the proposed Settlement. She suffered severe financial difficulties in that she lost her house, her child dropped out of school, there were no funds for basic necessities and her health was deteriorating.
After a thorough analysis of the complaint, we decided to investigate whether the city of delayed and/or failed to act in line with the Protected Disclosures Act 26 of 2000 (PDA) as amended, following a protected disclosure Ms Wilkinson made, causing her to suffer prejudice.
We found that city acted improperly when it failed to protect Ms Wilkinson in terms of the PDA, thereby causing her to suffer prejudice.
The disciplinary action against her was initiated/taken by Ms Nxumalo whose contract with the COJ at the time was unlawfully and irregularly extended by the former City Manager, Mr Fowler, without consultation with the City Council as required by section 56(a) of the Municipal Systems Act 32 of 2000.
Consequently, it can be concluded that all further actions and/or decisions taken by the COJ with regard to Ms Wilkinson’s disciplinary process as initiated by Ms Nxumalo should be regarded as a null and void in law.
The disciplinary action was initiated by Ms Nxumalo and pursued by the city as a result of the protected disclosure made by Ms Wilkinson in terms of the PDA, which disclosures by their nature and indeed under these specific circumstances ought to have triggered the COJ into affording her adequate protection from inter alia occupational detriment.
The evidence received during the investigation indicates that Ms Wilkinson had made the disclosure in accordance with the provisions of section 9 of the PDA which is deemed, for the purposes of the Act, to be a protected disclosure as she made it in good faith.
In the circumstances, we find that the disclosure Ms Wilkinson lodged with the former Executive Mayor, Parks Tau qualifies as a protected disclosure in terms of section 9 of the PDA.
Following the protected disclosure, Ms Wilkinson was subjected to disciplinary action, charged and was dismissed by her supervisor, Ms Nxumalo, whose employment with the city was based on a contract that was unlawful as she was no longer an employee of the COJ at the time she proffered charges against Ms Wilkinson.
In addition, the Arbitrator, Mr Timothy Boyce, had already noted that in terms of section 187(1) of the Labour Relations Act 66 of 1995 (LRA), as amended, that the dismissal was automatically unfair if the reason for the dismissal was the employer’s contravention of the PDA on account of an employee having made a protected disclosure as defined in that Act.
Ms Wilkinson consequently suffered occupational detriment and remained unemployed up to the time of her demise in 2021 while under severe financial distress as a result of her dismissal.
The conduct of the city in this regard is therefore improper and constitutes improper conduct as envisaged in the Constitution and maladministration as envisaged in the Public Protector Act.
To remedy this maladministration and improper conduct, the Municipal Manager must:
- Take cognisance of this report in so far as the improper conduct by COJ as highlighted in the findings referred to above is concerned;
- In line with Principle seven of the Batho Pele Principles issue a written apology posthumously to Ms Wilkinson’s family in particular to her son for the immense harm and prejudice caused to them as a result of the inaction in effectively addressing this issue, within 30 days of issuing this report;
- Consider taking appropriate steps through which Ms Wilkinson’s estate can be compensated in terms of section 193(1)(c) of the LRA since it is no longer practical for the COJ to reinstate or reemploy Ms Wilkinson as she is deceased and do so within 60 days of issuing of this report;
- The compensation to be awarded to Ms Wilkinson must be calculated in line with the provisions of section 194(3) of the LRA which must be just and equitable in all circumstances, but not more than the equivalent of 24 months' remuneration calculated at Ms Wilkinson's rate of remuneration on the date of dismissal; and
- Within 30 working days of the issuing of this report, if not in place, consider and approve a Whistle-Blowing Policy for the COJ, on which all employees must be trained and be made familiar with and present to EXCO and the Audit Committee for consideration on a quarterly basis, the Whistle-Blowing report within the compliance universe of the COJ.
Limpopo Department of Health (Report No. 02 of 2022/23)
We investigated, on own-initiative, allegations of maladministration by the Limpopo Department of Health relating to procurement irregularities and nepotism in the awarding of tenders for the supply and delivery of Personal Protective Equipment (PPE).
A Sunday Independent newspaper article headlined “A R932m PPE mess” triggered the investigation. The article contained the following allegations:
- Some of the companies which were awarded the PPE tenders were handpicked and did not appear on the official database of the department’s suppliers;
- The companies awarded the tenders are owned by people who are politically connected;
- The companies appointed and awarded tenders belong to African National Congress (ANC) activists and relatives of senior officials, including prominent politicians; and
- The department’s officials manipulated the procurement processes to benefit their associates and close comrades before locking away all PPE documents.
Having analysed the allegations thoroughly, we decided to restrict the investigation to the following three issues:
- Whether the department followed due processes in the procurement of PPE’s;
- Whether there was nepotism and/or undue influence/favouritism in the appointment of service providers for the provision of PPE; and
- If yes, whether other prospective service providers suffered prejudice as a result of nepotism or favouritism in the awarding of the PPE tenders.
We found that, indeed, the department did not follow due processes in the procurement of PPEs.
The department procured the supply and delivery of PPE’s through an emergency procurement process provided for in the National Treasury Practice Notes.
The deviation was executed in terms of paragraph 14.2.5 of the department’s Supply Chain Management (SCM) Procurement Policy which provides for the exemption or deviation from the normal bid procedures as necessitated by the emergency of the Covid-19 pandemic.
According to the evidence obtained, the deviation was reported within 10 working days to the Provincial Treasury on 25 March 2020, 02 June 2020, and 14 July 2020 and to the Auditor-General South Africa (AGSA) on 02 June 2020 and 14 July 2020.
The Head of Department (HOD) complied with the provisions of the Practice Notes, Treasury Regulations and Public Finance Management Act (PFMA) by reporting the deviation to the Provincial Treasury and AGSA within the prescribed time period.
We could not find evidence indicating that the department did not follow paragraph 14.2.5 of the SCM policy or that the department contravened National Instruction Note No.05 of 2020/2021: Emergency Procurement in response to the national disaster paragraph 3, which also regulates deviations from inviting bids in instances of emergency.
Evidence was, however, uncovered to prove that the department did not comply with the National Treasury SCM Instruction Note 9 of 2017/18, paragraphs 2.2 and 3.1 in the procurement of PPEs by appointing service providers who were not tax compliant.
Though Mokgobedi Training and Consulting was awarded the PPE tender, the HOD confirmed that the company did not render services and as such was not paid. The Director of Mokgobedi Training and Consulting, Ms Motlatso Elizabeth Moloi also confirmed that the company did not render services and was not paid.
Similarly, though Machawana Trading Enterprise was awarded the tender, the HOD confirmed that the company did not render services and as such was not paid by the Department. The Director of Machawana Trading Enterprise, Mr Milton Moagi confirmed telephonically on 10 December 2020, that his company did not render services as the order was cancelled because the service provider could not deliver services at the required time.
Sedilaka Holdings and Projects as well as Tsopane Pharm Group supplied and delivered the PPEs, and were paid for services rendered but did not claim Value Added Tax (VAT).
The conduct of the HOD is in contravention of section 38(1)(a)(iii) by failing to ensure there was an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective, section 38(1)(c)(ii) of the PFMA by failing to prevent unauthorised, irregular and fruitless and wasteful expenditure and losses resulting from criminal conduct, section 81(b) of the PFMA by making or permitting an unauthorised, an irregular and/or a fruitless and wasteful expenditure and section 81(2) of the PFMA by failing to exercise the power and duties to prevent unauthorised, irregular, fruitless and wasteful expenditure.
The conduct of the HOD constitutes maladministration as envisaged in the Public Protector Act, and improper conduct as envisaged in the Constitution.
We found that the allegation that there was nepotism and or undue influence/favouritism in the appointment of service providers for the provision of PPEs is unsubstantiated.
Mokgobedi Training and Consulting and Machawana Trading Enterprise are among companies which were awarded the PPE tenders but their orders were cancelled before services could be rendered.
Independently obtained evidence confirmed that the Directors of the following companies, i.e. NDIA Business Trading (Pty) Ltd; Luhura Trading and General Supplier and Mokgobedi Training and Consulting are politically-connected and or related to senior officials in government but we could not find any evidence that confirms that there was nepotism and or undue influence/favouritism in the appointment of service providers for the provision of PPEs.
The HOD did not deny the relationship between the Directors of NDIA Business Trading (Pty) Ltd and the Deputy Chairperson of the ANC, Ms Florence Radzilani; Luhura Trading and General Supplier and Deputy Director-General for Institutional Support in the Premier’s Office, Mr Eddie Managa as well as the relationship between the Director of Mokgobedi Training and Consulting and the former MEC for Department of Sport, Arts and Culture, Ms Onicca Mokgobedi Moloi.
However, she denied any relationship between the company Directors and the members of the Bid Evaluation Committee and Bid Adjudication Committee which could have influenced the procurement process within the department.
We could not find any evidence indicating that the MEC and HOD had any influence in the awarding of PPE tenders even though there is evidence that indicates that some of the service providers are related to politicians and senior government officials.
We could not find evidence to prove the alleged possible influence in the procurement processes of the awarding of PPE tenders or the relationship between the Directors of the companies awarded tenders and officials of the department.
The conduct of the department neither constituted maladministration nor improper conduct as envisaged in the Public Protector Act and the Constitution, respectively.
Also unsubstantiated was the allegation that other service providers suffered prejudice as a result of nepotism or favouritism in the awarding of the PPE tender.
We could not find any evidence indicating undue influence, nepotism and or favouritism during the investigation in the awarding of PPE tenders to the said companies.
Though the investigation team established that some of the appointed companies’ Directors may be politically-connected and/ or related to senior officials in government, we could not find any evidence to confirm that there was any influence/favouritism or nepotism.
We could not find evidence indicating that other prospective service providers suffered any prejudice as a result of the alleged nepotism or favouritism in the awarding of PPE tenders.
Accordingly, the conduct of the department neither constituted maladministration nor improper conduct as envisaged in the Public Protector Act and the Constitution, respectively.
To remedy the maladministration and improper conduct established, we direct the Premier of Limpopo to, within 90 working days of receipt of the report, take disciplinary action against the HOD for contravening the PFMA.
The Acting HOD, on the other hand, must:
- Within 60 working days of receipt of the report, take appropriate disciplinary action against all SCM officials who were involved in the procurement of the PPE for contravention of the SCM policy, the Public Service Regulations of 2016 and the PFMA;
- Within 120 working days of receipt of the report, and upon discovery of any unauthorised, irregular or fruitless and wasteful expenditure, immediately report, in writing, particulars of the expenditure to the relevant treasury and in the case of irregular expenditure involving the procurement of goods or services in terms of the PFMA;
- Ensure that the Internal Audit Unit, on an annual basis, reviews the adequacy and effectiveness of the department’s system of internal control, risk management and SCM.
- Ensure that the Audit Committee of the Department, in all its meetings, consider the internal audit and AGSA reports to ensure that the recommendations are implemented.
- The Acting HOD must in terms of paragraph 17.1.2 (a) of the SCM policy report any criminal conduct to the South African Police Service.
- Within 90 working days of the date of this report, refer the matter to the Directorate for Priority Crime Investigation (DPCI) and the Asset Forfeiture Unit (AFU) in terms of the Public Protector Act, 1994, to investigate any commission of an offence in this matter by any of the implicated parties.
- Lastly, the AGSA must takes note of the findings relating to the improper conduct and/or maladministration reported herein, and, within its own discretion, consider the findings and remedial action in this report and consider taking any action deemed appropriate under the circumstances in terms of any applicable legislation.
Manyi v South African Revenue Service (Report No. 04 of 2022/23)
We investigated allegations of maladministration, improper conduct and procurement irregularities by the South African Revenue Services (SARS). A complaint lodged in October 2016 by Mr Mzwanele Manyi led to the investigation. In his complaint, Mr Manyi alleged that:
- In or around 2006, the erstwhile Commissioner of SARS, Mr Pravin Gordhan, submitted a memorandum to the then Minister of Finance, Mr Trevor Manuel, recommending the noting of an intended appointment of Budge, Barone & Dominick (Pty) Ltd (BB&D) to replace Siebel (now known as Oracle) and IBM as the new service provider for the provision of strategic projects and related services within the SARS Modernisation Programme;
- The memorandum was sent in light of the intended cancellation of the appointed service provider, Oracle, which, in December 2005, entered into an agreement with SARS to provide software licences, maintenance as well as professional services to configure and co-develop functionalities to meet SARS Customer Management needs;
- The then Deputy Minister, Mr. Jabu Moleketi, noted the memorandum and requested more information but Mr Manuel went beyond noting and approved the memorandum;
- The contract was for R100million and no tender process was followed in the appointment of BB&D;
- SARS contravened Treasury Regulation 16A6.4 in that the institution had no solid grounds to deviate from normal competitive bidding;
- The appointed service provider had four weeks to make proposals to SARS;
- The appointed service provider had six weeks to scope the project which was awarded already;
- The appointed service provider re-scoped the awarded contract;
- The ten weeks mentioned above could have been used to facilitate and solicit public competitive bids;
- The R100million tender awarded has now escalated to over R1.4billion; and
- SARS appointed BB&D on the basis that Mr Barry Hore, the then General Manager: Strategy, Modernisation and Technology, recommended the service provider as he had previous dealings with them.
Having studied the complaint thoroughly, we decided to restrict the investigation to the following two issues:
- Whether SARS irregularly appointed BB&D in 2007 for the provision of strategic projects and related services, without following proper procurement processes and if so, whether such conduct amounts to maladministration and improper conduct in terms of the Public Protector Act and the Constitution; and
- Whether SARS subsequently continued to irregularly extend the same contract with BB&D and if so whether such conduct amounts to maladministration and improper conduct in terms of the Public Protector Act and the Constitution.
At the outset, I wish to indicate that our jurisdiction to investigate this matter which originated more than two years before the complaint was lodged, was specifically challenged by some of the parties involved in the investigation.
In terms of section 6(9) of the Public Protector Act, 1994, except in special circumstances, within our discretion, a complaint or matter referred to us shall not be entertained unless it is reported to us within two years from the date of the occurrence of the incident or matter concerned.
We carefully considered all the submissions made in this regard and exercised our discretion, mindful of the jurisprudence addressing this matter and all the relevant factors pertaining to the allegations, its impact on the public interest and the interest of justice.
Having considered also the large amounts of public money involved and the public importance of proper conduct and administration by SARS, which is a custodian of public money that is supposed to be an example to other organs of state in the administration thereof, we decided that sufficient special circumstances existed to warrant an investigation of the complaints that were lodged. This aspect is discussed in detail in the report.
On the first issue, we found that SARS irregularly appointed BB&D for the provision of strategic projects and related services without following proper procurement processes.
From the evidence submitted, SARS did not conduct a needs assessment as required by National Treasury Regulation 16A6.3 and Paragraph 3.1 of the Supply Chain Management (SCM) Guidelines for Accounting Officers. The product that was required when the Request for Tender (RFT) was issued was amended after SARS had already entered into an agreement with Siebel in December 2005.
Although, when SARS first appointed BB&D for its Modernisation Programme, the institution resorted to the provisions of Regulation 16A6.4, which provides for deviation from normal procurement processes, without the need to follow an open and competitive process as required by section 217(1) of the Constitution and Treasury Regulation 16A3.2, we could not find compelling reasons for them to do so.
The reasons recorded and approved by the Accounting Officer were self-created by SARS, in that they had been informed by Siebel that they would not be able to meet the requirements that SARS had wanted. However, SARS waited until the last minutes to identify the need for a new service provider, having also amended the scope of the initial tender.
The awarding of the contract to BB&D was in violation of the provisions of section 217(1) of the Constitution read with Treasury Regulation 16A3.2 (a) regarding fair, equitable, transparent and cost effective procurement process applicable when a state organ contracts for goods or services. This was also in conflict with section 195(1) of the Constitution which provides that the public administration must be governed by the democratic values and principles inter alia that a high standard of professional ethics must be maintained and public administration must be accountable as SARS’s senior officials did not adhere to this ethos.
The conduct of Mr Gordhan, as the then Commissioner of SARS and Accounting Officer, in approving the appointment of BB&D, constitutes improper conduct as envisaged in the Constitution and maladministration as envisaged in the Public Protector Act.
Regarding the second issue, we found that SARS continued to irregularly extend the same contract with BB&D. By continuing to extend the contract over a period of time exceeding 10 years, using numerous deviations approved by the SARS Executive Committee and without resorting to an open tender process and instead utilising “Procurement exemption approvals in terms of Treasury Regulation 16A6.4 of March 2005”, which SARS seems to have created for its purpose and used continuously for all its subsequent requests for extension approvals, the process followed by SARS not only flouted the National Treasury Regulations and Practice Notes but was also not fair, equitable, transparent, competitive and cost-effective in line with section 217(1) of the Constitution.
After making an undertaking to us to end the contract by December 2019, SARS reneged on their commitment by requesting a further and even longer extension from National Treasury until December 2022. This seems to suggest that SARS was not keen on ever terminating this contract at any point in time.
From the evidence provided, only the National Treasury and not the Auditor-General South Africa was informed of the exemption request and approval. However, the National Treasury continuously cautioned SARS against flouting the provisions of section 217, and tried to approve shorter periods of extension on which SARS always challenged the National Treasury until they got what they wanted, namely, a further extension of the contract until 31 December 2022.
The conduct of both the erstwhile and current accounting officers of SARS with regards to the extensions, is therefore in violation of section 51(1)(a)(i)(iii) and (iv) of the PFMA which provide that the accounting officer for a department, trading entity or constitutional institution, must ensure that such trading entity maintains an effective, efficient and transparent system of financial and risk management and internal controls whilst also ensuring to have in place an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost effective as well as a system for properly evaluating all major capital projects prior to a final decision on the project.
The conduct of the then Commissioners Mr Oupa Magashula, Mr Tom Moyane and later Mr Edward Kieswetter, in the continued extension of the BB&D contract, against our directive and the National Treasury’s advice, amounts to improper conduct as envisaged in the Constitution and maladministration as envisaged in the Public Protector Act.
To remedy this improper conduct and maladministration, we direct the Minister of Finance to take cognisance of the findings of maladministration and improper conduct in this investigation against SARS and include in his oversight role over SARS the monitoring of implementation of remedial action taken in pursuit of the findings in terms of the powers conferred under the Constitution.
The Director-General of the National Treasury must take cognisance of the findings and challenges identified in this investigation in so far as they relate to the National Treasury’s involvement in the approval of continuous deviations and granting of extensions to the BB&D contract in terms of Treasury Regulation 16A6.4.
In line with section 195 of the Constitution, to develop a policy on the management of IT contracts by state institutions, that diverges from the abuse of National Treasury Regulation 16A6.4 which ostensibly encourages the deviation from a competitive procurement process.
The Commissioner of SARS must take cognisance of the findings of maladministration and improper conduct in this investigation made against SARS and ensure that:
- In line with section 51(1)(a) of the PFMA, an urgent review of the contract between SARS and BB&D is undertaken to ensure that SARS is able to continue with the Modernisation Programme without a single company controlling the functioning and implementation of the programme;
- In line with section 217(1) of the Constitution and Treasury Regulation 16A3.2, within 180 days of receipt of this report, a competitive tender process is undertaken with the view to appointing a new service provider prior to the expiry of the current contract on 31 December 2022;
- In line with section 51(1)(a) of the PFMA, the intellectual property of SARS is protected and that services relating to the system provided by BB&D are not interrupted in the transition process; and
- No further extension of the BB&D contract, upon request by the Accounting Officer, are approved by the National Treasury beyond 31 December 2022.
The Auditor-General of South Africa must take note of the findings relating to the maladministration and improper conduct identified in this investigation made against SARS; and, within its own discretion, consider the findings and remedial action in this investigation and consider taking any action deemed appropriate under the circumstances in terms of any applicable legislation.
Further, the National Head of the Directorate for Priority Crime Investigation must take cognisance of the investigation and findings made in this Report; and, in terms of section 80(1) of the PFMA, consider investigating possible criminal conduct by the relevant Accounting Officers of SARS.
We look forward to the implementation of remedial action in respect of all the above reports. We remain available to offer guidance in case of challenges with implementation. The aim is to do our bit in respect of strengthening governance and improving the quality of public services rendered to the public. In addition, we seek to ensure accountability in all state affairs while stemming impunity.
Mr Abramjee / Constitutional Court
As I draw to a conclusion, I wish to express myself on a matter that is in the public domain and is unrelated to our investigation work.
I welcome the statement made by Chief Justice Zondo on SABC TV last night that the issue of the person who sent a message regarding a decision of the Constitutional Court which has not yet been announced is “unacceptable and is being investigated”.
I look forward to the Chief Justice’s urgent response to the letter sent to him on Tuesday on behalf of all the parties in the postponed application before the Western Cape High Court.
Further, I am seeking legal advice on the question of laying criminal charges against the sender of the SMS in question, Mr Ismail Abramjee, and his accomplices for the “confidential” message based on “very good authority” that an unusual decision has already been made to dismiss my rescission application without a hearing or even answering affidavits having been filed.
After the outcome of the investigation has been released, I await the directions of the Chief Justice in terms of the relevant Rules of the Constitutional Court.