Public Protector criticises frivolous court action by former USAASA board

Public Protector Adv. Busisiwe Mkhwebane has noted with concern an urgent application by former board members of the Universal Service and Access Agency of South Africa (USAASA) to have the implementation of the remedial action contained in a report she recently issued interdicted.

Adv. Mkhwebane issued the report towards the end of August 2018 following an own initiative investigation into the conduct of the board in obstructing her from investigating complaints lodged by the parastatal’s Chief Executive Officer Mr. Lumko Mtimde in May 2018.

Mr. Mtimde had alleged maladministration and improper conduct on the part of the board in respect of the appointment of the Company Secretary and a myriad other corporate governance issues.

He had also alleged that the board corruptly and irregularly interfered after he set out to stem what he saw as unlawful and irregular processes pursued as part of the Digital Migration project; in particular the procurement process for the production, manufacturing and distribution of Set Top Boxes. The board intended to take disciplinary steps against him.

The complaints were lodged under the Protected Disclosures Act, in terms of which no employee may be subjected to any occupational detriment by his or her employer on account of having made a protected disclosure.

The act defines a protected disclosure as a revelation made in good faith to, among other institutions or persons, a Member of Cabinet, the Auditor General and the Public Protector, by an employee who reasonably believes an impropriety they are disclosing falls within the ambit of the institution or person it is disclosed to and that the allegations concerned are substantially true.

On receipt of the complaints, Adv. Mkhwebane notified the board that Mr. Mtimde had made a Protected Disclosure in good faith and requested the board to hold its disciplinary inquiry into Mr. Mtimde in abeyance pending the investigation of the complaints he had lodged. However, the board forged ahead with the inquiry in defiance of the Public Protector. Mr. Mtimde was subsequently suspended.

While she accepts the rights of parties aggrieved with the outcomes of her investigations to approach the courts for recourse, Adv. Mkhwebane discourages frivolous litigation as it is costly and time-consuming for both her office and state at large.

“I wish to remind organs of state and persons occupying positions in state institutions that they have a constitutional duty to assist and protect this office to ensure its independence, impartiality, dignity and effectiveness,” Adv. Mkhwebane said. “Most importantly, I cannot overemphasise the need to protect whistle-blowers, for they are the lifeblood of the fight against maladministration and improper conduct.”

Adv. Mkhwebane has been informed that the Minister of Postal Services and Telecommunications has moved to implement the remedial action by dissolving the board. She is further informed that an interim board is in place and is in the process of reinstating Mr. Mtimde. Accordingly, she will not defend the case.

Meanwhile, Adv. Mkhwebane’s investigation into the rest of Mr. Mtimde’s complaints continues.