Public Protector releases finalised investigation reports

Public Protector Adv Thuli Madonsela today released five reports, relating to improper conduct or maladministration in state affairs. The reports are titled: Sombre records from our past, Unpaid services, Right or Privilege,
Not Above Board, There are no heroes.

Sombre records from our past captures a pensioner’s 14 years old journey as he tried to get the Eastern Cape Department of Education to recalculate his pension pay out after having alerted the relevant authorities being the Eastern Cape Department of Education (ECDOE) and the then Government Employment Pensions Fund (GEPF) that his pre1990 contributions while working under the Transkei Education Department, dating back to 1973, had been omitted. The new story given to Mr Mdaka, who is now older than 70 years, is that the amount was paid in a separate cheque by the GEPF to the ECDOE, which in turn claims to have posted to an address where the complainant never lived and which was never included by his in any of his documents.

The Public Protector found that there is sufficient evidence proving that Mr Mdaka is owed the outstanding pension pay money and that the conduct of the ECDOE and the GPAA has been improper and constitutes maladministration. Public Protector’s remedial is that the Chief Executive Officer of the Government Pension Administration Agency (GPAA) must take the necessary steps to re-calculate the pension benefits of the complainant and his years of service from 1973 when he was admitted to the fund and must ensure that the complainant’s years of service and contribution to the Transkei Pension Fund during 1974 to 1978 are included in the calculation. They have been asked to calculate and pay the outstanding money with interest, within 30 days.

Unpaid services captures the journey of Mr DL Mogotsi who has been trying to get paid by the Ngwathe Municipality for services rendered as a construction contractor 5 years ago(2008). After having been informed in writing that municipality was still assessing the value of his services shortly after submitting his invoices, he had received no further answers from the Municipality. The MFMA requires suppliers to be paid within 30 days of invoicing. The Public Protector too struggled to get any answers except contract documents and the certificate from the supervising engineer appointed by the municipality confirming that he had done work worthy of the invoice he issued. The finding is that the conduct of the Municipality is improper and constitutes maladministration. The Public Protector directed that he be paid within 30 days with interest. The complainant must also be furnished with a letter of apology within one month of the date of this report.

Right or Privilege deals with the trials of a small business person seeking a business opportunity to supply employees of the Department of Correctional Services with sports clothing. The main complaint was that the Department wrongfully denied him access to a persal deduction code by refusing to apply for such to the National Treasury on his behalf. The Public Protector’s finding is that the refusal was justified as the Department already had an adequate number of suppliers. However, the Public Protector has found that the process of engaging with him failed to comply with the requirements of just administrative action in that he was not given written reasons or informed on how to appeal the decision despite his request. The Public Protector also found that the service providers currently in the system were improperly procured as there was no open tender process. The Department has accepted the findings and is in the process of terminating current contracts and advertising the tender.

Not Above Board was issued more for educational purposes than to make a difference in the matter itself. The report captures Public Protector’s findings and directives on appropriate remedial action following an investigation into alleged maladministration relating to the appointment of the CEO of the Eastern Cape Gambling and Betting Board. The gist of the complaint was that the current CEO should never have been appointed as he was a domestic partner of a person working for the state at the time of appointment, a matter he failed to disclose and should he had so disclosed he would have been disqualified. The matter revolved around the meaning to be ascribed to section 6(k) of the Gambling Board and specifically whether or not a CEO can be regarded as a member of the Board and therefore subject to all ethical standards required of Board members. Despite the Board and MEC’s protests, the finding is that a CEO who is an ex officio member of a Board is a member of the Board and therefore subject to all ethical standards for Board Members. The Public Protector therefore determined that Mr Z should never have been appointed. However, with regard to remedial action, Public Protector has only sought to fix the future as the past is too far gone.

There are no heroes relates to an investigation and attempted conciliation process involving allegations of abuse of power submitted by the former Commissioner of the National Consumer Commission(NCC) against the Director- General (DG) of the Department of Trade and Industry (DTI) and the alleged failure by the Minister to sign the Commissioner’s performance agreement.

The complaint included various allegations of abuse of power, interference in NCC operations and harassment in retaliation to her resistance. The main allegations related to the DG’s alleged co-management of staff of the NCC transferred from the DTI, the main grievance being the DG’s alleged withdrawal of some of these without notice causing disruptions to the NCC’s operations. A related allegation was that the transfer of the staff was not handled properly by the DTI and the transfer agreement was never presented to or signed by the Commissioner. The Commissioner further alleged that the DTI had procured goods and services for the NCC without her consent and made certain payments without her knowledge or authorisation when she was already on board. She further alleged that the DG was interfering in her operational independence by questioning her decisions on motor industry matters on behalf of that industry. She alleged that her resistance to DTI’s interference in her operations had been met with retaliatory action, including withdrawal of needed support, particularly in regard to the procurement of financial systems. She further alleged that she was placed under virtual financial administration and ultimately subjected to multiple investigations and audits, facing at one stage 5 concurrent processes of this nature. The Commissioner also alleged that she had no performance agreement.

The Public Protector’s findings are the following:

Regarding alleged interference in human resource management, the conduct of the DTI constitutes a violation of the Commissioner’s operational independence, an unfair labour practice, an act of abuse of power and maladministration.

Regarding interference in finanacial management, the DTI’s conduct was lawful. however, although lawful, the DTI’s conduct was unfair, unreasonable and constitutes maladministration.

Regarding interference with the NCC’s mandate, the Public Protector was unable to find that the DG’s conduct amounted to interference with the mandate of the Commissioner as he did not direct her to do anything.

The Public Protector further found that the NCC was unable to execute its functions properly because of being subjected to multiple investigations. On the allegation of harassment, the Public Protector observed that,while there is nothing wrong with auditing, per se, the pressure placed on the Commissioner does amount to abuse of power.
The Public Protector also found that in a situation where relationships between the parties were already stretched it would have assisted enormously if the Minister ensured that the Commissioner’s Performance Agreement was signed timeously.

On alleged lack of Financial Management Systems, the NCC failed to implement proper financial systems until a very late stage of the financial year but the DTI is partly responsible for this failure in view of its tardiness in providing resources for the purchasing of financial systems.

On alleged irregular procurement of office accommodation, the procurement of the office accommodation for the NCC did not comply with the SCM Policy requirements and section 51(1)(b)(ii) of the PFMA in that and that the procurement by the NCC should be regarded as irregular expenditure. This was confirmed by the Auditor-General’s Final Management Report.

The Public Protector found that the acts and ommissions of the Commissioner regarding financial systems constitute maladministration. However, she observed that the context of being a new entity and the lack of support mitigate the severity of the impropriety.

On the allegation of the NCC’s failure to enter into staff perfomance agreements, the Public Protector found that the NCC failed to enter into performance agreements with staff on account of the absence of a signed perfomance agreement between the Minister and the Commissioner. She holds that while the conduct of the NCC generally and the Commissioner, specifically, was lawful, it was improper and constitutes maladministration.
 

The Public Protector’s full statement is attached and is also available at www.publicprotector.org