Statement by the Public Protector Adv. Busisiwe Mkhwebane and Deputy Public Protector Adv. Kholeka Gcaleka during a media briefing in Pretoria on Friday, October 22, 2021

Programme Director, Mr. Oupa Segalwe;
Deputy Public Protector, Adv. Kholeka Gcaleka;
Chief Executive Officer, Ms. Thandi Sibanyoni;
Acting Chief Operations Officer, Ms. Lethabo Mamabolo,
Executive Managers;
Staff;
The general public;
The media;
Ladies and gentlemen;
Good afternoon!
I can’t thank the news reporters enough for their support over the last four weeks. At the beginning of this month, I said that we will be releasing investigation reports on a weekly basis this month to mark this year’s Good Governance Month, which we commemorate annually in October – the month on which this office was launched 26 years ago.
Since late September to date, we have issued 21 reports covering an assortment of issues including service delivery failures such as the dire state of public hospitals and municipal billing problems, and conduct failure matters such as excesses in the exercise of public power and the abuse of state resources.
The news media played a pivotal role in relaying our findings in respect of all these matters to the public, thereby sparking and stimulating a worthwhile public dialogue on matters of accountability. This is good for our maturing constitutional democracy. 2

Today, we focus our attention on six reports that touch on service delivery, public procurement and executive ethics. Again we depend on you to convey our message to the people of South Africa so that they can engage further on matters of good governance in state affairs.
As usual, I will share the load with the Chief Executive Officer. We will also take question on these matters and our Acting Chief Operations Officer and Executive Managers, who hare heads of investigations branches, are at hand to assist with any questions that might arise in respect of these reports.
Without further ado, let me invite the Chief Executive Officer to deal with the first few matters before I take you through the rest.
Tomeng v Department of Correctional Services (Report No. 15 of 2021/22)
We investigated allegations of an undue delay by the Department of Correctional Services to investigate and issue a report following a grievance lodged by Mr. Francis Tomeng. In his complaint, Mr. Tomeng made the following allegations:
(a) In 2014, he submitted his application to the Department for transfer from Hoopstad Centre to the Hoopstad Community Corrections. The application was declined due to a shortage of staff. He pursued the application until it was verbally granted during 2017 by the Head of Hoopstad Community Corrections, Ms. P.F. Mareka;

(b) Subsequently, on 02 May 2017, he reported to the Community Corrections Centre. However, on 09 May 2017, he received correspondence from Mr. M.J. Mbele, the Area Commissioner: Bizzah Makhathe, instructing him to report back to his work station at the Hoopstad Centre.

(c) Following the above, Mr. Tomeng submitted an incapacity leave application for the period 10 May 2017 until 12 May 2017, which was declined by the Human Resource Division of the Hoopstad Centre without providing him with valid reasons. Consequently, under duress, he signed an Acknowledgement of Debt for seven unpaid working days taken, including the days on which he reported for duty at the Hoopstad Community Corrections. The department considered these days as days on which he was absent from work.

(d) He thereafter lodged a grievance with the Human Resource Division regarding the manner in which his application for transfer was handled by Mr. Mbele.
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(e) On 10 October 2017, whilst on duty and driving a state vehicle to the Grootvlei Centre Regional Office, he stopped there with a view to obtaining the status update regarding his grievance against Mr. Mbele.

(f) As a result, the Acting Head of the Centre, Mr. G. Taeli, acting on the instructions of Mr. Mbele, suspended his permit/authorisation to operate state vehicles. Consequently, in October 2017, he lodged a formal grievance with the department. However, his grievance was not addressed.

(g) He then escalated his grievance to the former Minister of Justice and Constitutional Development, Mr. Michael Masutha. He subsequently received a letter from the department’s Acting Deputy Regional Commissioner, Mr. N.B. Nyapotse, dated May 2018, addressed to Mr. D. Hamman whose position was not stated, who was instructed to investigate the allegations raised by the complainant and submit an investigation report by 30 May 2018.

(h) Although Mr. Nyapotse had given instructions for an investigation to be conducted into Mr. Tomeng’s allegations, he was not provided with the outcome thereof.

After analysing the complaint, we investigated whether the Department of Correctional Services unduly delayed to investigate and issue a report to Mr. Tomeng following his grievance of unfair labour practice against the Area Commissioner, Mr. M.J. Mbele in compliance with its applicable legal prescripts and, if so, whether such conduct constitutes maladministration and improper conduct.
We found that the department unduly delayed to investigate and issue a report to Mr. Tomeng following his grievance of unfair labour practice against the Area Commissioner, Mr. M.J. Mbele in compliance with its applicable legal prescripts since the report was only made available to him in May 2020.
The investigation revealed that Mr. Mbele lodged his unfair labour practice grievance with the department on in October 2017, and it started to investigate the matter from May 2018 only after Mr. Tomeng had sought the intervention of former Minister Masutha. The investigation was only completed by the department in September 2018 way outside its grievance procedure manual.
There were no reasons advanced by the department on its delay to deal with Mr. Tomeng’s grievance within thirty days in line with the departmental Grievance Procedure Manual.
The department further conceded that due to miscommunication within its staff, the outcome of the Mr. Tomeng’s grievance could not be communicated to him on time. 4

The investigation report into his unfair labour practice grievance was only delivered to him in June 2020.
The conduct of the department clearly violated section 195(1) (a) and (f) of the Constitution and all seven grievance process stages as outlined in the Departmental Grievance Procedure, 2013.
The conduct of the department also constitutes improper conduct as envisaged in section 182(1) of the Constitution and undue delay as envisaged in section 6(4)(i) and (ii) of the Public Protector Act.
To remedy this maladministration and improper conduct, the National Commissioner and Chief Operating Officer of the department must take cognisance of the findings of improper conduct and undue delay mentioned in the report and ensure that the department’s employees, including those on the department’s internship programmes, are regularly training on the department’s Grievance Procedure Manual to avoid a recurrence of similar incidents.
The Regional Commissioner of Correctional Services Free State/Northern Cape must within thirty days from the date of this report, apologise, in writing, to Mr. Tomeng for the department’s undue delay to attend to his grievance within the prescribed timeframes and to communicate the outcome to him.
Makate v Independent Regulatory Board for Auditors (Report No. 40 of 2021/22)
We investigated allegations of undue delay and/or improper conduct by the Independent Regulatory Board for Auditors (IRBA) to finalise an investigation into a complaint lodged by Mr. Kenneth Nkosana Makate.
Mr. Makate is involved in a dispute with network operator, Vodacom, over the “Please Call Me” issue. The IRBA, on the other hand, is the statutory body controlling that part of the accountancy profession involved with public accountancy in the country. Its strategic focus is to protect the financial interests of the public by ensuring that only suitably qualified individuals are admitted to the auditing profession and that registered auditors deliver services of the highest quality and adhere to the highest ethics standards.
Mr. Makate alleged, in a complaint dated 28 January 2020, that he lodged a complaint with the IRBA on 16 April 2018 in the form of a sworn statement as prescribed in terms of Rule 2.2 of the Disciplinary Rules of the IRBA, requesting the body to investigate the liability disclosure of Vodacom (Pty) Ltd with regard to the “Please Call Me” matter. 5

In his complaint to the IRBA, Mr. Makate requested that the following issues be investigated by the IRBA:
(a) “Possible misstatement in the audited annual financial statements of Vodacom per section B of the attached affidavit, relating to the extent of liabilities disclosed;

(b) Concealment of possible criminality to the detriment of shareholders including government of RSA, and other stakeholders such as investors, pension funds per section E of the attached affidavit;

(c) The treatment of an existing liability as contingent liability. There was no litigation against Vodacom after the Constitutional Court’s order and all that was supposed to be determined was quantification of an amount owed to Makate, this matter is reflected in correspondence among the parties and is in line with the Constitutional Court’s order. The analysis that informed this disclosure and accounting treatment of “Please Call me” as contingent liability must be investigated;

(d) Misleading statements contained in Vodacom’s Pre-listing statement (prospectus), as articulated in section D of the attached affidavit. The auditors of Vodacom as per the Pre-listing statement were Deloitte; and

(e) Any other matters that the Board or the IRBA deems necessary to investigate at its own discretion”.

Mr. Makate further alleged that, since lodging his complaint, the IRBA has failed to provide him with regular feedback on the matter and further that the IRBA did not provide him with specific timeframes upon which his complaint would be finalised.
Our investigation focused on whether there was an undue delay by the IRBA to investigate and finalise the investigation into Mr. Makate’s complaint, and if yes, whether such conduct constitutes maladministration.

I must pause here to highlight the fact that, during the course of the investigation and, in particular, in response to a notice issued in terms of Section 7(9) of the Public Protector Act, the IRBA took issue with our intension to make a finding of maladministration in relation to the undue delays in the finalisation of their investigation and the gaps in their rules. This was an issue not specifically raised by the complainant. The IRBA saw our approach as an undue extension of the scope of our investigation and objected.
It is important to draw the attention of the IRBA and/or any other organ of state for that matter to the unambiguous words of the Supreme Court of Appeal in the Mail 6

and Guardian v Public Protector case. In that matter, the court held that, as the Public Protector, we are not a passive adjudicator between the citizens and the state, relying only upon evidence placed before us by the parties.

The court went to great lengths to make the point that ours is an investigatory mandate, requiring pro-action in appropriate circumstances. It made it clear that, although we can act upon complaints that are made, we may also take the initiative to commence an enquiry. Further, the constitutional principle of legality required the IRBA to exercise the power conferred upon them diligently and without delay. It was on these bases that we couldn’t turn a blind eye when we stumbled upon evidence of maladministration during the investigation.

Accordingly, having considered the evidence uncovered during the investigation against the relevant regulatory framework, we found that, indeed, there was an undue delay on the part of the IRBA to finalise their investigation into Mr. Makate’s complaint.
It is however acknowledged that the investigation — from the time the matter was allocated to a Senior Investigator for investigation — was conducted and finalised within a reasonable period. The plan was approved or confirmed by the Board during April 2020 and the investigation was concluded on 14 January 2021. That is nine months.

However, the IRBA failed to allocate the file to the investigator within a reasonable time. The file was only allocated after more than 22 months. That was close to two years after receipt of the complaint. Such a long delay is considered to be unreasonable, and constitutes maladministration.
The IRBA lacks adequate internal processes and service standards in which investigation timelines are prescribed and it further failed to implement proper processes to ensure speedy resolution of complaints.

The IRBA failed to provide Mr. Makate with regular feedback on his complaint. He only got feedback upon enquiry about the progress of the investigation or when negative media/social media communications came up.

The IRBA’s system of allocating files annually to the investigators is another contributing factor causing undue delay in finalising investigation files.
The conduct of the IRBA is in violation of the Constitution and thus constitutes improper conduct as envisaged in Section 182(1) of the Constitution and maladministration as envisaged in Section 6(4) (i) and (ii) of the Public Protector Act.

To remedy this maladministration and improper conduct, the Minister of Finance and the Chairperson of the IRBA Board must take cognisance of the envisaged remedial action.

The Acting Chief Executive Officer of the IRBA, Mr. Imre Nagy, must, develop a Standard Operating Procedure Manual (SOP) and Service Standards to enhance the IRBA Rules when conducting investigations, with prescribed timelines within which the investigations should be conducted to ensure continuous communication with complainants and to ensure speedy resolution and turn-around times of complaints. This must happen within ninety working days from the date of this report.

The Acting CEO must also ensure that all the investigation staff are trained on the newly developed Standard Operating Procedure Manual. This must happen within thirty working days after the manual is developed.

In addition, the Acting CEO must review the current process of allocation of investigation files to ensure that all investigation files are allocated and attended to without delay and finalised within the prescribed SOP timelines.

Campbell v Knysna Local Municipality (Report No. 60 of 2021/22)

We investigated allegations of improper conduct and maladministration by the Knysna Local Municipality in the Western Cape Province in relation to the procurement of services from Knysna Tourism.

Knysna Tourism is a voluntary organisation, previously known as Knysna Publicity Association and thereafter as the Knysna Tourism Bureau, incorporated during 2000 under section 21 of the Companies Act No 61 of 1973. During 2015, the organisation was again incorporated under section 21 of the Companies Act, No. 71 of 2008 as Knysna & Partners NPC, with registration number 2000/015490/08.

This investigation was based on a complaint lodged in July 2017 by Ms. Susan Campbell, a resident of Knysna. A closer look at the complaint showed that it was the same matter that Mr. Mike Hampton reported as a petition to the National Council of Provinces in April 2015. Mr. Hampton, is a resident of Knysna and a self-proclaimed activist.

On 11 September 2018, the NCOP referred Mr. Hampton’s complaint to us for investigation. Ms. Campbell supported Mr. Hampton in his petition to the NCOP.
In the main, it was alleged that:

(a) The municipality entered into an agreement with Knysna Tourism from 2002 to 2017 to market the greater Knysna area as a premier destination aimed at achieving tourism growth and to provide a world class visitor centre.

(b) According to the agreement, the municipality would annually provide funding to Knysna Tourism to conduct tourism services on its behalf. Funding allegedly came from “Grant-in-Aid” funds, to be allocated and/or awarded to an organisation or body outside of any sphere of government, which is not a commercial or business organisation, for specific purposes.

(c) Payments made to Knysna Tourism by the municipality were not in accordance with municipality‘s Grant-in-Aid Policy, which provides that all applications for the “Grant-in–Aid” funds were to be assessed by the Municipal Committee responsible for the consideration of Grant-in-Aid applications.

(d) Even though the municipality obtained a legal opinion, which indicated that the Service Level Agreement (SLA) would be unlawful if it was further extended, the Municipal Council still resolved on 29 May 2017 to renew the SLA with Knysna Tourism for an additional twelve months.

(e) In essence, the complainants contended that the procurement of services by the municipality from Knysna Tourism was not in accordance with section 217 of the Constitution and the municipality’s Supply Chain Management Policy, and was therefore improper and amounts to maladministration.

Based on an analysis of these allegations, we decided to investigate whether the procurement of tourism services by the municipality from Knysna Tourism was in accordance with the relevant laws and prescripts regulating the procurement of goods and services by the municipality; and if not whether the conduct of the municipality was improper and constituted maladministration.

We found that, indeed, the municipality’s procurement of tourism services from Knysna Tourism was not in accordance with the relevant laws and prescripts regulating its procurement of goods and services.

The conduct of the municipality in procuring services from Knysna Tourism from the year 2000 was at variance with the provisions section 217 of the Constitution, section 112(1)(a) of the Local Government: Municipal Finance Management Act, 2003, Supply Chain Management Regulations and paragraphs 11, 12 and 36(1)(a) of the Municipality’s Supply Chain Management Policy.

In terms these prescripts, the municipality was required to follow a fair, equitable, transparent, competitive and cost effective tender process and only to deviate from it, inter alia, in an emergency. The municipality paid more than R58 million to Knysna Tourism for services rendered.
The conduct of the municipality was thus improper, constituted maladministration and resulted in irregular expenditure as contemplated by section 1 of the MFMA. This constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration in terms of section 6(4) (a) (i) of the Public Protector Act.

The remedial action we are taking as contemplated in Section 182(1) (c) of the Constitution is that the Speaker of Council must take appropriate steps to ensure that the council refers the irregular expenditure incurred by the municipality in respect of procuring services from Knysna Tourism to the relevant Council Committee.

The Committee must investigate and determine in terms of section 32(2) of the MFMA whether the irregular expenditure is recoverable or not, and if so take action accordingly within 30 days from the date of this report. The Speaker must also take appropriate steps to ensure that criminal charges are laid in terms of section 173 of the MFMA in respect of the irregular expenditure incurred within 30 days from the date of this report.

In addition, the Acting Municipal Manager must, in terms of section 32(4) of the MFMA, report the irregular expenditure by the municipality to the Executive Mayor, the Western Cape Provincial Treasury, the Western Cape MEC for Local Government and the Auditor-General South Africa within 30 days from the date of this report. This must be done in writing.

The Acting Municipal Manager must also, in terms of section 171(4) of the MFMA, take appropriate steps to investigate whether any of the municipal officials that were involved in the irregular procurement of the services of Knysna Tourism should be held accountable for financial misconduct, and if so take the appropriate steps to ensure that disciplinary action is instituted against them. This must take place within 30 days from the date of this report.

Further, the Acting Municipal Manager must ensure that all municipal staff involved in Supply Chain Management processes for the procurement of goods and services attend an appropriate training course on the provisions of section 217 of the Constitution, the MFMA, the Regulations, the SCM Policy and the Grant-in-Aid Policy. This must be done within 60 days from the date of this report.

Lastly, the Acting Municipal Manager must submit a report to the Municipal Council on the action taken on all the above steps within 60 days from the date of this report.

Hoffman v South African Social Security Agency (Report No. 38 of 2021/22) 10

We investigated allegations of undue delay and maladministration by the South African Social Security Agency (SASSA) in the procurement of services for the distribution of food parcels in the social relief of distress programme in six provinces.
The investigation was prompted by a complaint lodged on 21 July 2020 by Adv. Paul Hoffman of the Institute for Accountability in Southern Africa. In his complaint, Adv. Hoffman made the following allegations:

(a) SASSA advertised a tender for the appointment of new service providers for the distribution of food parcels for the Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga and Western Cape provinces from 14 June 2019 to 5 July 2019, but that the tender was subsequently cancelled by SASSA, as a result of technical problems.

(b) SASSA failed to finalise the tender process towards the end of 2019 and the tender was only re-advertised on 17 January 2020.

(c) This obligated SASSA to request the previously appointed service providers to temporarily extend their services in the said provinces for a period of three months, that is for the period 01 September 2019 until the end of November 2019.

(d) When it became apparent that the tender process was delayed, SASSA approached the National Treasury for a deviation in the tender process to temporarily contract service providers for another 6 months, whilst finalising the new tender process. The appointment of these service providers were approved by National Treasury, but were only concluded by SASSA in April 2020 and only for a three month period.

(e) SASSA thus distributed no food parcels in the six provinces from November 2019 to March 2020.

(f) The appointed service providers were stuck with huge stock piles of food in warehouses, due to the uncertainty about the extension of their contracts.

(g) SASSA therefore failed to deliver services and the relief of social distress programme, as a large number of households were left without food parcels during a critical time.

(h) In essence, Adv. Hoffman alleged that the failure or undue delay by SASSA in delivering food parcels to the poor and destitute in the six provinces from November 2019 to March 2020 was improper, constitutes maladministration and caused prejudice.

Having analysed the complaint, we decided to investigate whether there was undue delay by SASSA in awarding new contracts to service providers for the distribution of food parcels in the Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga and Western Cape provinces, resulting in a failure to distribute food parcels in the six provinces during the period November 2019 to March 2020, and if yes, whether such conduct was improper, constitutes maladministration and caused prejudice.
The investigation confirmed that there was, indeed, undue delay by SASSA in awarding new contacts to service providers for the distribution of food parcels in Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, resulting in a failure to distribute food parcels in the four provinces during the period November 2019 to March 2020. The allegation that SASSA’s conduct was improper, constitutes maladministration and caused prejudice is also substantiated.

There was a lack of proper planning to execute the bid evaluation and adjudication processes in respect of Bid no 08/19/GA, the closing date of which was 5 July 2019, which was aggravated by the lack of proper internal communication between Supply Chain Management (SCM), the Bid Evaluation Committee (BEC) and the Bid Adjudication Committee (BAC) with regards to who was responsible to extend the validity period of the bid.

The fairness in the bidding process was compromised by the fact that SASSA gave inadequate time for bidders to respond to the extension of the 90 days validity period of bids. The request to agree to an extension was only sent to the bidders hours before the bid would expire. This was not in line with the constitutional imperatives of fairness and competitiveness as contemplated by section 217 of the Constitution, regulation16A3.2 of the Treasury Regulations, section 1(a) of the Policy and the Guide.

The compromised bidding process eventually culminated in the delay of the distribution of food parcels in the six provinces for a period of five months, which prejudiced the recipients thereof.

SASSA incurred financial losses in terms of accommodation for two months and subsistence and travel allowances for nine BEC members at the St Georges Hotel, as well as transport costs to transport the tender documents from SASSA Head Office to the St Georges Hotel.

SASSA’s conduct accordingly constitutes undue delay as envisaged in section 182(1) of the Constitution and in terms of section 6(4) (a) (ii) of the Public Protector Act.

To remedy this maladministration and improper conduct, the Chief Executive Officer of SASSA must take appropriate steps to ensure that all the SASSA officials involved in SCM processes, including members of the BEC’s and BAC’s are trained on the relevant provisions of section 217 of the Constitution, the Public Finance Management Act, the Treasury Regulations, the Policy, the relevant Treasury 12

Guidelines and Instructions and the role of each official in the SCM process, within 90 days from the date of this report.

The CEO must also initiate disciplinary action in accordance with the recommendations made in the internal investigation report, within 60 days from the date of this report, and, within 60 days from the date of this report, disclose the wasteful expenditure incurred by SASSA to National Treasury.

Lastly, the CEO must submit a report on the implementation of the remedial action taken to the Minister for Social Development and the Acting Director-General of the Department of Social Development within 60 days from the date of this report.

Herron v Winde (Report No. 66 of 2021/22)

We investigated an alleged breach of the Executive Ethics Code by the Premier of the Western Cape, Mr. Allan Winde following a complaint from Mr. Brett Herron, a Member of the Western Cape Provincial Legislature. The complaint was lodged on 02 July 2020.

Mr. Herron made the following allegations:

(a) The former Executive Mayor of the Oudtshoorn Local Municipality Mr. Colan Sylvester on 11 March 2019 alerted the Western Cape Member of the Executive Council responsible for Local Government, Environmental Affairs and Development Planning, Mr. Anton Bredell to several allegations of maladministration, fraud, corruption and financial misconduct on the part of the Municipality and requested his assistance to attend to the matter.

(b) Notwithstanding the provisions of section 106 of the Local Government: Municipal Systems Act, 2000, the MEC failed to respond to Mr. Sylvester’s letter until 22 January 2020, and only after he had to take action as the Executive Mayor without the MEC’s assistance. Further, that from the independent investigation of the allegations that was commissioned by the municipality, it appeared that there were valid reasons for the concerns brought to the MEC’s attention by Mr. Sylvester.

(c) On 12 December 2019, the MEC addressed DA Councillors of the municipality and proposed that they should agree that the Western Cape Provincial Government places the Municipality “under administration”. He allegedly, inter alia, stated that: “My suggestion is that we, that you, as Oudtshoorn’s Council ‘cause you’re the majority, you’re the Council, you ask that we put you under administration.”(sic)

(d) The former Executive Mayor on 06 March 2020, addressed a letter to Premier Winde, mainly in connection with the conduct of MEC Bredell referred to above.

(e) The Premier was obligated to ‘”conduct an enquiry in terms of section 2.2 (sic) of the Executive Ethics Code taking into account the promotion of an open, democratic and accountable government’’.

(f) The Premier appeared before the Parliamentary Portfolio Committee on Cooperative Governance and Traditional Affairs on 23 June 2020. During the proceedings, he was referred by a Member of Parliament to the MEC’s proposals to the DA Councillors of the municipality that they agree that the municipality is placed under administration. The Premier expressed the view that it is perfectly legal to have a political agreement to place a municipality under administration.

(g) The Premier’s response to the Portfolio Committee is indicative of the fact that he was aware of the proposal made by the MEC on 12 December 2019, to the DA Councillors, to agree that the municipality is placed administration and that his statements in this regard were improper and in violation of the Executive Ethics Code.

Having analysed these allegations as set out in the complaint, we identified the following two issues for investigation:

(a) Whether the Premier failed to act on the allegations of improper conduct by MEC Bredell, which were brought to his attention by the former Executive Mayor of the Municipality on 6 March 2020 and if so, whether such conduct was improper and constitutes a breach of the Executive Ethics Code.

(b) Whether the statements made by the Premier to the Parliamentary Portfolio Committee on Cooperative and Traditional Affairs on 23 June 2020 in connection with the proposal made by MEC Bredell to DA Councillors of the municipality on 12 December 2019 that they should agree that the municipality is placed under administration, were improper and if so whether his conduct constitutes a breach of the Executive Ethics Code.

We found that the allegation that the Premier failed to act on the allegations against the MEC contained in the letter addressed to him by the former Executive Mayor of the municipality was not substantiated. The same allegations became the subject of an investigation by the Public Protector in terms of the Executive Members’ Ethics Act when a complaint of a breach of the Executive Ethics Code was lodged on 2 July 2020. I will deal with that matter shortly. 14

The truth of the matter is that Premier Winde requested and obtained a comprehensive response from MEC Bredell on the allegations and decided that there was no reasonable basis for further action by his office.

On the second issue, however, we found that, indeed, the statements made by the Premier to the Parliamentary Portfolio Committee on Cooperative Governance and Traditional Affairs on 23 June 2020 in connection with the proposal made by MEC Bredell to DA Councillors of the municipality on 12 December 2019 that they should agree that the Municipality is placed under administration were improper.
The statements made by the Premier to the Portfolio Committee supporting the conduct of the MEC were not in accordance with the Constitution and legislation regulating the intervention by a provincial government in a municipality and even the practice of political negotiation and agreement as submitted by him.

His statements were therefore not in the best interest of good governance and not consistent with what is expected of a person in the position of a Premier. He therefore acted in breach of section 136(2) (b) of the Constitution and paragraphs 2.1(c) and (d), and 2.3(c) of the Executive Ethics Code.

Section 136(2) (b) of the Constitution provides that Members of the Executive Council of a province may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

Paragraphs 2.1(c) and (d) of the Executive Code of Ethics state that Members of the Executive must, to the satisfaction of the President or the Premier, as the case may be, (c) act in good faith and in the best interest of good governance and (d) act in all respects in a manner that is consistent with the integrity of their office or government while Paragraph 2.3(c) provides that Members of the Executive may not act in a way that is inconsistent with their position.

To remedy the breach of the Executive Ethics Code, the President must in terms of section 3(5)(2)(b) of the Executive Members’ Ethics Act, submit a copy of this report and any comments thereon to the National Council of Provinces within a reasonable time, but not later than 14 days after receiving the report.

Herron v Bredell (Report No. 67 of 2021/22)

We investigated allegations of a breach of the Executive Ethics Code by the Member of the Western Cape Executive Council responsible for Local Government, Environmental Affairs and Development Planning, Mr. Anton Bredell.
This investigation, too, followed a complaint by Mr. Brett Herron, who is a member of the Western Cape Provincial Legislature. He lodged the complaint on 02 July 2020.

In his complaint, Mr. Herron alleged that:

(a) On 11 March 2019, the former Executive Mayor of the Oudtshoorn Local Municipality, Mr Colan Sylvester, alerted the MEC to several allegations of maladministration, fraud, corruption and financial misconduct on the part of the municipality, and requested his assistance to attend to these matters.

(b) Notwithstanding the provisions of section 106 of the Local Government: Municipal Systems Act, 2000, the MEC failed to respond to the former Executive Mayor’s letter until 22 January 2020 and only after he had to take action as the Executive Mayor without the MEC’s assistance. Further, that from the independent investigation of the allegations that was commissioned by the municipality, it appeared that there were valid reasons for concerns brought to the MEC’s attention by the former Executive Mayor.

(c) The MEC addressed Councillors of the municipality representing the Democratic Alliance (DA) on 12 December 2019, and proposed that they should agree that the Western Cape Provincial Government places the Municipality ‘’under administration’’.

(d) The MEC allegedly said that: ‘’My suggestion is that we, that you, as Oudtshoorn Council cause you’re the majority, you’re the council, you ask that we put you under administration’’ (sic)

(e) It is clear from the comments made at this meeting that the MEC’s intention was to achieve political advantage for the DA, instead of acting in accordance with the constitutional imperative of assisting the municipality as the MEC responsible for local government in the Western Cape Province.

(f) The MEC’s proposal to the DA Councillors of the municipality that they should agree that the Western Cape Provincial Government places the municipality under administration was improper and constitutes a direct conflict between his official responsibilities as the MEC responsible for local government and his private interests as the Western Cape Provincial Chairperson of the DA at the time.

(g) The MEC’s failure or actions referred to above were improper and constituted a breach of the Executive Ethics Code.

Upon analysing the allegations as spelt out in the complaint, we decided to investigate the following two issues:

(a) Whether MEC Bredell failed to take timeous appropriate action in connection with allegations of improper conduct against officials of the municipality when he was requested to do so by the former Executive Mayor on 11 March 2019, and if so whether such failure was improper and constitutes a breach of the Executive Ethics Code.

(b) Whether MEC Bredell on 12 December 2019, proposed to DA Councillors of the municipality that they should agree that the Western Cape Provincial Government places the municipality under administration and if so, whether such conduct was improper and constitutes a breach of the Executive Ethics Code.

We found that, indeed, MEC Bredell failed to take timeous appropriate action in connection with allegations of improper conduct against officials of the municipality when he was requested to do so by the former Executive Mayor on 11 March 2019.

The MEC only formally approached the Speaker of the municipality and responded to the former Executive Mayor on 22 January 2020, 10 months after the serious allegations of maladministration, fraud, corruption and other malpractices were brought to his attention.

His first formal response to the serious allegations of misconduct and impropriety at the municipality 10 months after having received the letter of 11 March 2019 from a person in the position of the Executive Manager does not indicate diligence and promptness on his part to attend thereto and at least to obtain more information or the response from the municipality to the serious allegations.

Diligence and promptness were required of him in terms of section 106 of the Local Government: Municipal Systems Act, 2000, section 136 of the Local Government: Municipal Finance Management Act, 2003 and section 5 of the Western Cape Monitoring and Support of Municipalities Act, 2014.

The allegation that the conduct of the MEC was in breach of the Executive Ethics Code is therefore, also substantiated. He did not act in good faith and in the best interest of good governance at the Municipality. His conduct was also inconsistent with his office as MEC responsible for local government.

The MEC’s conduct was improper and in violation of the provision of section 136 (2) (b) of the Constitution. It also constitutes a breach of paragraphs 2.1(a), 2.1(b), 2.1(c), 2.1(d) and 2.3(c) of the Executive Ethics Code.

Section 136(2) (b) of the Constitution provides that Members of the Executive Council of a province may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

Paragraphs 2.1(a), (b), (c) and (d) of the Executive Code of Ethics state that Members of the Executive must, to the satisfaction of the President or the Premier, as the case may be, (a) perform their duties and exercise their powers diligently and honestly, (b) fulfil all the obligations imposed upon them by the Constitution and the law, (c) act in good faith and in the best interest of good governance and (d) act in all respects in a manner that is consistent with the integrity of their office or government while Paragraph 2.3(c) provides that Members of the Executive may not act in a way that is inconsistent with their position.

We also found that, indeed, MEC Bredell on 12 December 2019 proposed to DA Councillors of the municipality that they should agree that the Western Cape Provincial Administration places the municipality under administration.

The MEC conceded that he attended a DA Caucus meeting with DA Councillors of the municipality on 12 December 2019. On his own version, the MEC suggested at the DA Caucus meeting that the DA Councillors should agree that the municipality is placed under administration.

The suggestion or contention by the MEC that he acted exclusively in furtherance of a matter that concerned his relationship with his political party and that his action fell exclusively within the pursuance of private interests as envisaged in the Executive Ethics Code, and therefore within the private sphere, is misdirected.

This is also borne from his position as a member of the Western Cape Provincial Legislature, and on account of having been appointed to public office, created by the Constitution, as a representative of a political party. Membership of a political party is thus a requirement to be elected and appointed to public office in terms of the Electoral Act 73 of 1998 and not a default “capacity’’ to which he can revert at will.

Section 106 of the Municipal Systems Act read with section 139 of the Constitution and section 5 of the Western Cape Monitoring and Support of Municipalities Act, 2014 stipulate the steps that have to be taken for the provincial government to intervene in the affairs of a municipality and put it under “administration’’.

The role of the MEC responsible for local government in the relevant province is an objective one that focuses on the best interest of good governance and administration. This process has to precede any decision in respect of intervention.

In this matter, the MEC had concluded that the intervention by the Western Cape Provincial Government was necessary, even before he had considered the matter as contemplated by the relevant provisions of the Constitution, Municipal Systems Act and the Western Cape Monitoring and Support of Municipalities Act, 2014, to the extent that he even proposed it at a DA Caucus meeting where only Councillors of the ruling party were present.

The conduct of the MEC in this regard was therefore not in accordance with the Constitution and the law.

The allegation that the conduct of the MEC in that regard was in breach of the Executive Ethics Code is also substantiated.

In making the suggestion to DA Councillors as he did, the MEC did not act diligently and in good faith as he was required to do in terms of paragraph 2.1 of the Executive Ethics Code. His conduct was also not in the best interest of good governance and consistent with his office. The MEC also exposed himself to the risk of a conflict between his official responsibilities as MEC and his private interest as a member of the DA.

The MEC’s conduct therefore was improper and in breach of the provisions of section 136(2) of the Constitution. It also constitutes a breach of paragraph 2.1(a), 2.1(b), 2.1(c), 2.1(d) and 2.3(c) of the Executive Code of Ethics, which are explained above and 2.3(f) of the Code, in terms of which Members of the Executive may not expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.

To remedy this breach of the Executive Code of Ethics, the Premier of the Western Cape must, in terms of section 3(6) of the Executive Members’ Ethics Act, within a reasonable time, but no later than 14 days after receiving this report, submit a copy thereof and any comments thereon, together with a report on any action taken or to be taken in regard thereto, to the Western Cape Provincial Legislature.

Once again, we look forward to the acceptance of our findings by all concerned and the swift implementation of remedial action to fix whatever problems we have drawn the attention of the respondents to but also, in other cases, for redress, with a view to taking the prejudiced complainants as close as possible to where they would have been had it not been for maladministration.
As I always say, our approach to exacting accountability and helping grassroots communities to vindicate their rights is not antagonistic. This is precisely because our processes are inquisitorial as opposed to other forum that naturally take an accusatorial and prosecutorial paths in order to bring people to book.

Accordingly, as an independent constitutional institution that is subject only to the Constitution and the law, and must be impartial and exercise its powers and perform its functions without fear, favour or prejudice, our investigations are carried out honestly and in good faith to appropriately change state systems and processes and the lives of people for the better, where the need arises.

Thank you.