Public Protector cautions officials who pushback against COVID-19 investigations

Public Protector Adv. Busisiwe Mkhwebane wishes to remind the executive and senior officials in provincial administrations that accountability in the form of cooperating with her office’s investigations is a constitutional imperative and therefore not optional, and that failure to respond to questions and requests for information could lead to serious consequences.

Of late, efforts by Public Protector investigators’ to deal expeditiously with COVID-19 related matters, including those of alleged irregular procurement of goods and services, have been met with some degree of resistance from some members of the executive and senior government officials including heads of department.

Among the reasons provided for the apparent refusal to answer questions or avail information required for investigations is that such information has already been provided to other forums such as the Special Investigation Unit (SIU) and the Auditor-General of South Africa (AGSA).

The Public Protector is an independent constitutional institution with the power to investigate any alleged or suspected improper or prejudicial conduct in state affairs or in the public administration and in any sphere of government, to report on that conduct and to take appropriate remedial action. Such remedial action is binding unless reviewed and set aside by a court of law.

Unlike the Public Protector, the SIU is a statutory body whose investigations are prompted by presidential proclamations. The outcomes of its investigations are reported back to the President in contrast to those of the Public Protector, which must be made public unless there are special circumstances preventing the airing of such information. The AGSA, on the other hand, audits organs of state’s performance, financial management and compliance with policies and other prescripts.

Despite their varying mandates, the Public Protector, SIU and AGSA’s respective work complement each other’s. This is why these institutions met separately last month, with a view to developing mechanisms for the investigation and auditing of COVID-19 cases in a collaborative manner.

“Officials cannot cherry-pick which institutions they want to account to. Answering questions from one institution is not a bulwark against accounting to another.

“The Constitution is unequivocal that organs of state must assist the Public Protector to ensure the institution’s independence, impartiality, dignity and effectiveness, and that no person or organ of state may interfere with the functioning of the institution,” said Adv. Mkhwebane, adding that her office will be issuing subpoenas as a way of expediting the investigations.

In terms of section 7 (1)(i) (b) of the Public Protector Act, the format and the procedure to be followed in conducting any investigation shall be determined by the Public Protector with due regard to the circumstances of each case. Section 7(4)(a), read with section 7(5), empowers the Public Protector to direct any person to submit an affidavit or appear before her to give evidence or produce any document, which has a bearing on a matter under investigation. She may also examine the person.

In addition, Section 11 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) or refuses to answer questions put to them under that section or gives answers which they know to be false shall be guilty of an offense. Any person convicted of such an offense shall be liable to a fine not exceeding R40 000,00 or imprisonment for a period not exceeding 12 months or both.