Public Protector South Africa Releases Investigation Reports

 

During this third quarter of the year, the institution has received 1851 matters, 737 matters were finalised, falling within the Service Delivery and Good Governance and Integrity classifications, as well 42 matters classified as Early Resolution matters.

 

Our investigations are approached using an enquiry process that seeks to determine what happened, what should have happened, is there a discrepancy between what happened and what should have happened, and does that deviation amount to improper conduct and/or undue delay? The question regarding what happened is resolved through a factual enquiry relying on the evidence provided by the parties and independently sourced during the investigation.

 

The Public Protector, Adv. Kholeka Gcaleka hereby publishes findings in respect of eleven (11) investigations signed off by the Public Protector in the third quarter of the 2023/2024 financial year. These findings are published in terms of section 182(5) of the Constitution, read with sections 8(1) and 8(2A) (a) of the Public Protector Act No. 23 of 1994.

 

In terms of this legal framework, the PPSA’s investigation reports must be published, and findings must be made known to any person in a manner the Public Protector deems fit, unless exceptional circumstances require that a report be kept confidential.

 

The reports communicate the outcomes of our investigations and provide accountability and a degree of transparency to the public. The goal is to communicate the complaint, evidence obtained, examined, found relevant and significant, the laws governing them, the analysis conducted to reach the conclusions found in the reports, and remedial action taken where adverse findings have been made.

 

Report Number: 22 of 2022/23

 

An investigation into the alleged irregular appointment of a service provider by the Lekwa-Teemane Local Municipality (the Municipality), for the installation of smart electricity meters at the Bloemhof and Christiana townships.

 

The complaint was lodged with the North-West Office of the PPSA and alleged, among other things, that the Municipality appointed a service provider to install smart electricity meters in the Bloemhof and Christiana townships irregularly and in contravention of the Municipal Systems Act, 2000 (MSA) and the Municipal Finance Management Act, 2003 (MFMA).

 

The issues that were considered and investigated were, whether the Lekwa-Teemane Local Municipality failed to follow proper procurement processes in the outsourcing of electricity revenue enhancement services which resulted in the appointment of the service provider, and whether the Municipality unlawfully received an amount of R30 000 000-00 (Thirty Million Rands) from the service provider and irregularly utilised same to service its Eskom debt.

 

The allegation that the functionaries of the Municipality failed to follow proper procurement processes in the outsourcing of electricity revenue enhancement

services which resulted in the appointment of the service provider, is substantiated.

 

The allegation that the Municipality unlawfully received an amount of R30 000 000-00 (Thirty Million Rands) from the service provider as performance security, is unsubstantiated.

 

However, the allegation that the Municipality irregularly utilized the performance security to settle its Eskom municipal debt, is substantiated.

 

The remedial action taken is that:

 

The Mayor of Lekwa-Teemane Local Municipality must within ninety (90) calendar in terms of section 56(3)(f) of the Municipal Services Act, table the report before the Municipal Council to discuss the maladministration which occurred during the appointment of the service provider and the manner in which the Municipality dealt with the issue of the performance security which ought to have been paid by the service provider, as compensation for any loss that could result from their failure to fulfil their obligations in terms of the contract, to adopt the report and pass a resolution thereon with a view to establish controls to identify and prevent future recurrence of the identified deficiencies.

 

The Municipal Manager must within ninety (90) calendar days from the date of this report and in terms of section 62(1)(c) of the MFMA, conduct a supply chain, contract management and risk assessment and develop risk mitigation plans.

 

Within ninety (90) calendar days from the date of this report and in terms of section 62(1)(c) of the MFMA, direct internal audit to include

in its annual plan an audit of supply chain and contract management to identify internal control deficiencies that may result in the recurrence of similar incidents.

 

The Audit Committee, in its quarterly meetings, must monitor the implementation of all internal audit reports and recommendations, including recommendations by the Auditor General South Africa (AGSA) and advise management in terms of section 166(2) of the MFMA.

 

 

Report Number: 26 of 2023/24

 

An investigation into allegations of undue delay and improper conduct against the Tshwane University of Technology (TUT) and the Department of Higher Education and Training (DHET), in addressing an appeal application against the decision taken by the Defence Panel of the TUT in connection with a doctoral thesis submitted by the Complainant and the outcome of the investigation into his grievance submitted to the TUT Student Ombudsman (TUT Ombudsman).

 

The issue identified to inform and focus the investigation was, whether there was undue delay and/or failure by the Vice-Chancellor to escalate the Complainant’s appeal against a decision of the Defence Panel to the Senate and to implement the recommendations of the TUT Student Ombudsman.

 

The Public Protector Act confers on the Public Protector, the sole discretion to determine how to resolve a dispute of alleged improper conduct or maladministration. Section 6 of the Public Protector Act empowers the Public Protector to resolve a matter or remedy an act or omission through Alternative

Dispute Resolution (ADR) measures such as conciliation, mediation and negotiation.

 

The matter was resolved through mediation and conciliation in terms of section 6(4)(b)(i) of the Public Protector Act.

The ADR session took place on 20 June 2023 between TUT and the Complainant, facilitated by a PPSA Investigation Team.

 

The following was resolved on:

 

The TUT proposed that the Complainant address all the comments made by the Defence Panel and make a resubmission. Upon resubmission, TUT would follow the applicable processes to conclude the final assessment of the study.

 

The date for re-submission was extended to 31 December 2023 and the Complainant was afforded an opportunity to register for the current year (2023) at no additional registration fees.

 

On 03 July 2023, the Complainant amended his doctoral thesis taking into consideration the comments from the Defence Panel session on 22 July 2022 and on 27 September 2023, advised the PPSA that he had met the requirements to be awarded of Doctor of Business Administration with effect from 29 August 2023.

 

He graduated on 24 October 2023 and was awarded a degree of Doctor of Business Administration. The matter was successfully resolved through Mediation.

 

 

Report Number: 31 of 2023/2024

 

An investigation into allegations of maladministration and improper conduct relating to the shortlisting, interviewing and appointment of certain candidates to positions of Child and Youth Care Workers (Care Workers) and Child and Youth Care Team Leaders (Team Leaders) by the Limpopo Department of Social Development (the Department).

The issues that were considered and investigated were, whether the Department irregularly appointed certain candidates to posts of Care Worker without them meeting the minimum requirements for the posts as set out in the advertisement, and whether the Department irregularly appointed certain candidates to posts of Team Leader without them meeting the minimum requirement for the posts as set out in the advertisement.

The allegation that the functionaries of the Department irregularly appointed certain candidates to the posts of Care Worker at both PWC and MSCC without them meeting the minimum requirements as set out in the advertisement, is substantiated.

The allegation that the Department irregularly appointed certain candidates to the posts of Team Leaders without them meeting the minimum requirements as set out in the advertisement, is substantiated.

The remedial action taken is that:

 

The Head of Department must, in accordance with the provisions of section 158(1)(h) of the LRA, within a period of one hundred and twenty (120) calendar days, take the necessary steps for the judicial review of the irregular appointments of the eighteen (18) candidates appointed

to the posts of Care Workers and nine (09) candidates appointed to the

posts of Team Leader.

 

Within one hundred and twenty (120) calendar days take appropriate steps in line with the provisions of section 16A(2)(a) of the Public Service Act,1994 (PSA), against members of the shortlisting and interviewing panels.

 

Within hundred and twenty (120) calendar days of receipt of this report, take appropriate steps, in line with the provisions of section 16A(2)(a) of the PSA and the Disciplinary Code and Procedures for the Public Service, against the Deputy Director of Human Resources, for misguiding the interview panel in contravention of the provisions of clause 5.1.2.6 of the Recruitment and Selection Policy, resulting in the irregular addition of a candidate to the list of candidates to be interviewed for the position of Care Worker.

 

The Member of the Executive Council for Social Development, Limpopo must take cognisance of the findings and remedial action contained in the report.

 

The Premier of the Limpopo Provincial Government must within one hundred and twenty (120) calendar days take appropriate steps against the Head of department for not exercising proper oversight and adherence to provisions of the PSA over the recruitment process of Care Workers and Team Leaders, in accordance with the provisions of section 16A(1)(a) of the PSA and Chapter 7 of the Senior Management Handbook.

 

The balance of eight reports are:

 

Report No: 24 of 2023/24 - Bapela //City of Tshwane Metropolitan Municipality (Hammanskraal)

 

Report No: 25 of 2023/24 - Eastern Cape Systemic Investigation

 

Report No. 27 of 2023/24 - Masire//Mahikeng Local Municipality

 

Report No. 28 of 2023/24 -Thlakudi//Speaker of the National Assembly

 

Report No. 29 of 2023/24 -Parker//Sol Plaatjie Local Municipality

 

Report No. 30 of 2023/24 -Anonymous//Dihlabeng Local Municipality

 

Report No. 32 of 2023/24 -Ntsizi//Master of the High Court

 

Report No. 33 of 2023/24 -Seboko//Gauteng Department of Human Settlements

 

We are certain that the increased cooperation the PPSA has received from state role players will positively contribute to the prevention of a reoccurrence of many of the issues identified in this quarter’s published reports.

 

This is evident though our systemic interventions in the Eastern Cape and in Hammanskraal, which have ensured that the wheels are in motion to resolve some of the challenges that have been troubling those communities. The response by the Eastern Cape government and the City of Tshwane in this regard is encouraging.

 

Our improving relations with various local and provincial governments and legislatures across the country has seen an improvement in the implementation of our remedial action. We anticipate that the remedial action prescribed in these reports will also be implemented accordingly, as they are binding, unless an interdict is obtained and or set aside by a court of law.

 

Once again we express our gratitude to members of the media for making it possible for us to share our work with the nation.

Lastly, we thank the PPSA team across the country for the valiant efforts they have put into holding the institution high and serving the People of South Africa.

 

The full reports can be accessed on the Public Protector South Africa website at www.pprotect.org.