Public Protector cautions Limpopo public office-bearers against falling foul of executive ethics regime

Public Protector Adv. Busisiwe Mkhwebane on Wednesday cautioned the Premier Stan Mathabatha-led Limpopo Executive Council against meddling in procurement matters, explaining that such interference could get them into trouble with the law.

Addressing the newly-elected executive in Bela-Bela as part of an induction programme, which coincided with her office’s annual stakeholder roadshow, Adv. Mkhwebane also warned against the referral of friends or relatives to officials for opportunities as that could place members of the executive in an untenable situation of a conflict between their official duties and private interest.

“Don’t ever find yourself instructing officials as to which company should be given business,” she said, responding to questions from the floor following her Deputy, Adv. Kevin Malunga’s presentation on the Executive Members’ Ethics Act (EMEA) and the Code of Ethics. “If you are there to serve the public, forget about yourself.”

In 2017, Adv. Mkhwebane found that the former Limpopo MEC for Transport, Ms. Mapula Mokaba-Phukwana irregularly awarded a contract to MPA Investigation Team to conduct a forensic investigation without proper legal authority and without following proper procurement processes.

She also found that Head of Department, Ms. Hanli du Plessis irregularly regularised the contract awarded to MPA Investigation Team by re-appointing the company on the basis of a verbal instruction or directive issued by Ms. Mokaba-Phukwana.

Both Ms. Mokaba-Phukwana and Ms. Du Plessis took the report on judicial review. The Public Protector has since won the case involving Ms. Du Plessis while the one concerning Ms. Mokaba-Phukwana is still pending before the courts.

Adv. Mkhwebane told Premier Mathabatha that the mere action of taking her reports on review does not suspend the implementation of remedial action. Distinguishing between judicial review and appeal processes, she explained that where the former is concerned parties must obtain an interdict to suspend the implementation of the remedial action while in the latter the order of the court of first instance is automatically suspended pending appeal proceedings.

In response to questions about whether her office could be used by Premier Mathabatha and his MECs’ political opponents to settle scores, Adv. Mkhwebane explained that she was legally obliged to investigate any alleged breaches of the Executive Code of Ethics, adding that her office was apolitical and exercised its powers and performed its functions without fear, favour or prejudice.

“I work with an experience team of investigators, some of whose stay with this office spans the tenures of Judge Selby Baqwa, Adv. Lawrence Mushwana and Adv. Thuli Madonsela,” she said.

Adv. Mkhwebane encouraged the provincial cabinet to familiarise themselves with the provisions of section 136 of the Constitution, the EMEA and the Code of Ethics as well as the Public Protector Rules, which set out, among other things, the turnaround times that are applicable to responses to subpoenas and notices issued in terms of section 7(9) of the Public Protector Act.

She also indicated that nothing stopped members of the executive from referring matters to her office or requesting her assistance as a mediator in disputes such as the Vuwani stand-off, which robbed pupils of valuable learning time thereby infringing their right to education.  She reminded them that the late former Minister, Mr. Kader Asmal, once approached the Public Protector to help probe the cause of ineffective communication in state affairs.

Earlier in the day, Adv. Malunga took the session – facilitated by former Minister, Dr. Sydney Mufamadi – through the provisions of section 136 of the Constitution, the EMEA and the Code of Ethics.

He explained that the Public Protector had exclusive power to enforce executive ethics and that only members of the Parliament, provincial legislatures and the executive could lodge complaints of alleged breaches of the Code of Ethics.

Adv. Malunga further explained that the executive ethics legal framework barred Presidents, Deputy Presidents, Ministers, Deputy Ministers, Premiers and MECs from undertaking any other paid work, acting in any way that was inconsistent with their offices, exposing themselves to a risk of a conflict between their official responsibilities and private interests or using their positions or any information entrusted to them to enrich themselves or improperly benefit any other person.

Moreover, members of the executive must, to the satisfaction of the President or Premier, perform their duties and exercise their powers diligently and honestly, fulfill their obligations, act in good faith and in the best interest of good governance and act in a manner that is consistent with the integrity of their offices or the government. They may also not deliberately or inadvertently mislead Parliament.

Over the years, the Public Protector has investigated numerous complaints of alleged breaches of the Code of Ethics by members of the executive at both the national and provincial levels of government.

These include alleged incidences of misleading the legislature, acting in a manner that was inconsistent with their offices, using the positions entrusted to them to enrich themselves or improperly benefit another person and exposing themselves to situations involving the risk of a conflict between their official responsibilities and their private interests.

Themed Governance and Ethics – What Is Expected of Members of the Executive, the roadshow targets the incoming members of the executive in the different provinces and focuses on what is expected of them in relation to the executive ethics legal framework.

From Limpopo, the roadshow will move to the Eastern Cape in July, followed by Gauteng in August and Northern Cape and KwaZulu-Natal in September. From there, it will go to the Western Cape in October, Free State in November, North West in December and Mpumalanga in March 2020.

End