Statement by the Public Protector, Adv. Busisiwe Mkhwebane, and Deputy Public Protector, Adv. Kholeka Gcaleka, during a virtual media briefing held in Pretoria on Monday, 13 December 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,

Chief of Staff, Mr. Luther Lebelo;

Executive Managers;

Staff of the Public Protector South Africa;

Members of the public;

Ladies and gentlemen;

 

Good afternoon,

 

Once again, let me express our sincerest gratitude to you for always being at hand whenever we need you to help us convey the outcomes of our investigations to the public.

 

This is our 10th media briefing this calendar year. The eight investigation reports we are releasing today bring the total number of reports issued in the last 11 and a half months to 94.

 

In those investigations, we dealt with service delivery and good governance matters such as public housing, the disbursement of the social relief of distress grant, irregular appointment of staff, procurement irregularities including those pertaining to Personal Protective Equipment, problems bedeviling our public health care sector and executive ethics.

 

In all those reports, we achieved two main things: In some, we helped a considerable number of individuals and organs of state to clear their names while in others, we made adverse findings of maladministration and improper conduct, and took appropriate remedial action.

 

In taking appropriate remedial action, we sought to take the complainants as close as possible to where they would have been had it not been for the improper conduct and maladministration. We also sought to correct the system so as to prevent a recurrence of the improper conduct and maladministration, and in some cases, prejudicial conduct.

 

We further sought to see to it that there is consequence management such as disciplinary action against those responsible – the aim being to stem impunity, which, if not acted upon, can serve as a breeding ground for this very improper conduct, maladministration and prejudicial conduct.

 

We are pleased with our modest impact thus far. In most of the 86 reports we have issued up to this point, organs of state have responded positively. In some instances, they acknowledged their wrongs halfway through investigations and undertook to make amends right then and there.

 

Such undertakings were expressed in responses to section 7(9) notices, which we serve on those against whom we contemplate adverse findings in terms of the Public Protector Act – the aim being to grant them an opportunity to make representations against the intended findings and remedial action.

 

I will cite but only two examples, the one a service delivery case and the other a conduct failure matter. The thorough work we did alongside sister Chapter 9 institution, the South African Human Rights Commission, to restore the dignity of the people of Alexandra, who have, for years, lived in deplorable conditions, is one such example. The City of Johannesburg owned up to its service delivery failures in that township and committed to do right by that community. We are monitoring progress in that regard.

 

On the conduct failure front, Ministerial Advisors at the National Department of Transport, who were not only improperly appointed but paid at a higher scale than they were entitled to, continue to payback the excess amounts to the public purse after both the Minister and Director-General in that department acknowledged the maladministration and undertook to make amends.

 

Of course there are a few other cases that have been taken on judicial review, with the aggrieved parties exercising their rights as they are entitled to. We are opposing some of those and, where it serves no purpose to oppose, we have opted to abide by the court’s decision.

 

A number of other investigations and interventions are underway. These include the work we are doing in ensuring that tertiary students are in the lecture hall at the beginning of the academic year as opposed to engaging in violent protests, fending off financial exclusion and other hindrances.

 

We are also finalizing the systemic investigation into the challenges facing the public, particularly women and children, in the South African justice system. This is specific to issues of Gender-Based Violence and Femicide and child maintenance. We launched this investigation at beginning of the financial year and we have made considerable progress. We hope to release the findings soon.

 

Today, we end the year 2021 with nine investigation reports, which deal with a range of issues – from everyday struggles that the public contend with to complex issues of public procurement and executive ethics. Let us start with the former.

 

 

PREJUDICIAL CONDUCT

 

Seepamore v Sol Plaatje Local Municipality

 

We investigated allegations of improper conduct and maladministration relating to wrongful burial of the late Mr. Beshu Joseph Khumalo in the grave of the late Mr. Stephen Moiloa, by the Sol Plaatje Municipality in the Northern Cape in 2013. This followed a complaint lodged in September 2019 by Ms. Kehilwe Seepamore, Mr. Moiloa’s daughter.

 

Ms. Seepamore alleged that in 2013 the municipality buried Mr. Khumalo in the grave of her father, Mr. Moiloa, who had been buried at ABC Cemetery 36 years earlier, in September 1977.  Essentially, Ms. Seepamore alleged that the wrongful burial by the municipality was improper, constitutes maladministration and prejudiced her family.

 

We focused the investigation on whether the municipality buried Mr. Khumalo in the grave of Mr. Moiloa and if so, whether the conduct of the municipality was improper, constitutes maladministration and prejudiced Ms. Seepamore’s family.

 

We found that the municipality did indeed bury Mr. Khumalo in the grave of Mr. Moiloa in 2013. The municipality failed to ensure that the graves were properly marked and that the numbers were affixed to the graves as required in terms of the provisions of the Sol Plaatje Municipality Cemeteries By-law No. 2 of 2006.

 

The municipality’s failure to rectify the wrongful burial of Mr. Khumalo in the grave of the late father of Ms. Seepamore since 2013, was in violation of sections 4, 5(1) and (2) of the Sol Plaatje Municipality Cemeteries By-law, 2006, and Item 2 of the Code of Conduct for Municipal Staff Members as set out in Schedule 2 to the Local Government: Municipal Systems Act, 2000.

 

It also prejudiced Ms. Seepamore and her family as they had to bear the trauma caused by the wrongful burial and will also have to go through the ordeal of exhumation and reburial. The Municipality’s conduct accordingly constitutes improper conduct as envisaged by the Constitution and maladministration in terms of the Public Protector Act.

 

The Municipal Manager conceded in his response to the section 7(9) notice that the municipality was at fault and indicated that the municipality was in the process of improving the registry system of the cemeteries. He further indicated that the municipality is committed to resolve the matter.

 

Officials of the municipality will be meeting with the families involved to endeavour to find an amicable solution, failing which the municipality will obtain a court order for the exhumation and reburial of Mr. Khumalo and will make a financial contribution in that regard. To remedy this improper conduct and maladministration, we directed the Municipal Manager to:

 

1. After consultation with the families involved, approach the relevant sphere of government or approach the Magistrate’s Court in terms of section 26(1)(a) and (b) of the National Health Act Regulations relating to the management of human remains, 2013 and section 16(8) of the Sol Plaatje Municipality Cemeteries By-law, 2006 in order to obtain an exhumation order that will enable the Municipality to exhume the body of Mr. Khumalo that was wrongfully buried in the grave of the late father of the Complainant, within 60 days from the date of this report and for it to be reburied;

 

2. Ensure that once the court order is granted, make a financial contribution to the family concerned for the costs of the exhumation and reburial, within 60 working days from the date of this report;

 

3. Take the appropriate steps in respect of disciplinary action against the officials of the municipality who contributed to undue delay in the rectification of the wrongful burial of Mr. Khumalo in the grave of the late father of the complainant in terms of the Consequence Management Policy, within 60 working days from the date of this report;

 

4. Embark on auditing all existing graves to ensure correct marking before loading the information on a newly developed digitized GPRS system in pre-empting wrongful burials in wrong graves, within 60 working days from the date of this report;

 

5. Take the appropriate steps to expedite the finalisation of the Sol Plaatje Municipal Cemeteries Policy to regulate the management of cemeteries and the threshold capped costs paid by the Municipality for the performance of rituals during exhumation of remains of people, and to provide training to the relevant officials that will have to implement the Policy, within 60 working days from the date of this report;

 

6. Ensure that the Audit Committee of the Municipality reports regularly to the Municipal Council on the audit outcomes relating to internal audit plan which includes the digitized GPRS system, within 60 working days from the date of this report;

 

7. Establish internal complaint mechanism which will address service delivery complaints raised by the community served by the Municipality, within 60 working days from the date of this report; and

 

8. Report to the Council on the implementation of the remedial action taken in paragraphs 1 to 7 above within 90 working days from the date of this report, and provide the Public Protector with a copy thereof.

 

Louw v Sol Plaatje Local Municipality (Report No. 65 of 2021/22)

 

We investigated allegations of improper conduct and maladministration relating to the wrongful burial of the late Ms. Keitumetse Koloane in the grave of the late brother of Mr. Izak Raymond Louw by the Sol Plaatje Municipality in November 2019.

 

Mr. Louw lodged the complaint on 15 January 2020. He alleged that on 30 November 2019, the municipality removed the tombstone on the grave of his late brother, Mr. Richard Paul Louw, and buried Ms. Keitumetse Koloane on top of his late brother, at the West End Cemetery in Kimberley, without the permission of his family.

He further alleged that after he established during his visit to the cemetery that the grave of his brother, Mr. Richard Louw, had been tampered with, the matter was reported to Mr. Doctor Letebejane, the Cemetery Manager of the Municipality. Mr. Letebejane promised that the problem would be rectified as soon as possible but nothing happened despite the Louw family making several enquiries to the municipality.

Essentially, Mr. Louw’s complaint is that the municipality caused the wrongful burial of Ms. Koloane in the grave of his late brother at the West End Cemetery and that the conduct of the municipality was improper, constitutes maladministration and prejudiced his family.

 

Having studied the complaint, we focused the investigation on whether the municipality wrongfully buried Ms. Koloane in the grave of the late brother of Mr. Louw in 2019; and if so, whether the conduct of the municipality was improper, constitutes maladministration and prejudiced his family.

 

We found that, indeed, the Municipality wrongfully buried Ms. Koloane in the grave of the late brother of Mr. Louw in 2019. The municipality failed to ensure that the graves were properly marked, a number was affixed to the grave and the register of graves properly managed, as required by the Sol Plaatje Municipality Cemeteries By-law, 2006.

 

The municipality’s failure to rectify the wrongful burial of Ms. Koloane in the grave of the late brother of Mr. Louw since 2019, was in violation of sections 4, 5(1) and (2) of the Sol Plaatje Municipality Cemeteries By-law, 2006, and Item 2 of the Code of Conduct for Municipal Staff Members as set out in Schedule 2 to the Municipal Systems Act. It also prejudiced Mr. Louw and his family as they had to bear the trauma caused by the wrongful burial and will also have to go through the ordeal of exhumation and reburial.

 

The municipality’s conduct accordingly constitutes improper conduct as envisaged by the Constitution and maladministration in terms of the Public Protector Act. To remedy this improper conduct and maladministration, the Municipal Manager must:

 

1. After consultation with the families involved, approach the relevant sphere of government or approach the Magistrate’s Court in terms of section 26(1)(a) and (b) of the National Health Act Regulations relating to the management of human remains, 2013 section 16(8) of the By-Law in order to obtain an exhumation order that will enable the Municipality to exhume the body of Ms. Koloane that was wrongfully buried in the grave of Mr. Louw’s late brother within 60 working days from the date of this report;

 

2. Ensure that once the court order is granted, make a financial contribution to the family concerned for the costs of the exhumation and reburial within 60 working days from the date of this report;

 

3. Ensure the tombstone that was removed from Mr. Louw’s grave is returned to its original position within 90 working days from the date of this report;

 

4. Take the appropriate steps in respect of disciplinary action against the officials of the municipality who contributed to the undue delay in the rectification of the wrongful burial of Ms. Koloane in the grave of Mr. Louw’s the late brother in terms of the municipality’s Consequence Management Policy within 60 working days from the date of this report;

 

5. Embark on the auditing of all existing graves to ensure correct marking before loading the information on a newly developed digitized GPRS system in pre-empting wrongful burials in wrong graves within 60 working days from the date of this report;

 

6. Take the appropriate steps to expedite the finalisation of the Sol Plaatje Municipal Cemeteries Policy to regulate the management of cemeteries and the threshold capped costs paid by the municipality for the performance of rituals during exhumation of remains of people, and to provide training to the relevant officials that will have to implement the Policy, within 60 working days from the date of this report;

 

7. Ensure that the Audit Committee of the municipality reports regularly to the Municipal Council on the audit outcomes relating to internal audit plan which includes the digitized GPRS system within 60 working days from the date of this report;

 

8. Establish internal complaint mechanism which will address service delivery complaints raised by the community served by the municipality within 60 working days from the date of this report; and

 

9. Report to the Council on the implementation of the remedial action taken in paragraphs 1 to 8 above within 90 working days from the date of this report, and provide the Public Protector with a copy thereof.

 

UNDUE DELAY

 

Adams v Sol Plaatje Local Municipality

 

We investigated allegations of improper conduct and maladministration relating to undue delay by the Sol Plaatje Local Municipality in the Northern Cape to finalise a claim for damages to a property, situated at 53 Gladstone Street in Kimberley, in February 2015. The investigated followed a complaint was lodged on 24 April 2017 by Mr. Isghak Adams.

 

Mr. Adams alleged that on 9 January 2015 there was a water pipe burst at Gladstone Street, causing his property to be flooded and resulting in extensive damage to his property and belongings to the estimated amount of R31 000.00. He lodged a claim for damages with the municipality on 2 February 2015, but was never paid.

 

In essence, his complaint is that of an alleged undue delay on the part of the municipality to finalise his claim for damages to his property and that this was improper, constituted maladministration and prejudiced him.

 

We focused the investigation on whether the municipality unduly delayed to finalise a claim for damages to property situated at 53 Gladstone Street in Kimberley in February 2015 and if so, whether the conduct of the municipality was improper, constitutes maladministration and prejudiced Mr. Adams.

 

We found that, indeed, the municipality unduly delayed to finalise Mr. Adams’ claim. This failure was not in accordance with the relevant provisions of the Local Government: Municipal Finance Management Act, 2003 (MFMA) relating to the managing of liabilities of the municipality and Item 2 of the Code of Conduct for Municipal Staff Members as set out in Schedule 2 of the Local Government: Municipal Systems Act, 2000.

 

The conduct of the Municipality accordingly constitutes improper conduct as envisaged in the Constitution and maladministration and undue delay in terms of the Public Protector Act. To remedy this improper conduct and maladministration, the Municipal Manager must:

 

1. Take the appropriate steps to engage with Mr. Adams to offer a settlement relative to his claim for damages against the municipality, within 30 working days from the date of the report;

 

2. Take appropriate steps in respect of disciplinary action against any official(s) of the municipality who contributed to the undue delay in the finalisation of Mr. Adams’ claim for damages in terms of the Consequence Management Policy, within 60 working days from the date of the report;

 

3. Ensure that all the officials of the municipality that deal with claims for damages against the municipality are trained in the Loss Control and Insurance Policy and how it should be managed within 60 days from the date of the report.

 

4. Develop an Insurance Management Policy for the municipality in line with Loss Control and Insurance Policy in conjunction with section 61, 62(c) and sec 78 of the MFMA to regulate insurance by the municipality against claims for damages and liabilities and submit it to the Council for consideration and adoption within 90 working days from the date of this report;

 

5. Establish the internal complaints mechanism to ensure that complaints against the delivery of service are expeditiously resolved as per the resolution taken by the high level meeting between the PPSA and the Northern Cape Premier;

 

6. Ensure that the Audit Committee regularly reports to the Council on the adopted audit plan; and

 

7. Report to the Council on the progress made with the implementation of the remedial action taken in paragraphs 1-6 above within 120 working days from the date of the report and to submit a copy thereof to the Public Protector.

 

IRREGULAR APPOINMENTS OF STAFF

Senokoane and others v Tshwane University of Technology

We investigated allegations of maladministration and improper conduct by functionaries of Tshwane University of Technology (TUT) relating to the term of office for the Chairperson of Council, Dr. Bandile Masuku; the appointment of Professor Lourens van Staden in the post of Vice-Chancellor and Principal; and the appointment of other employees.

The investigation was prompted by complaints lodged variously and separately on 24 August 2018 by Mr. BB Senokoane, on 8 November 2019 by Mr. Siphiwe Gift Mabuza and on 3 December 2019 by Mr. Malose Alfred Leopeng. Having analysed the complaints, we whittled the matter down to the following four issues, which we investigated:

1. Whether Dr. Masuku was serving a third term of Chairpersonship for the TUT Council in contravention of the TUT Institutional Statute and Institutional Rules at the time when he presided over the recruitment and selection process leading to the appointment of Prof. Van Staden as Vice-Chancellor and Principal of TUT;

 

2. Whether the TUT Council appointed Prof. van Staden in the post of Vice-Chancellor and Principal of the TUT without following the Institutional Statute and Institutional Rules;

 

3. Whether the TUT Council appointed Mr. M.J. Magedi in the post of Advisor to the Vice-Chancellor, without him being qualified for the post; and

 

4. Whether the TUT Council promoted Mr. S. Mahlalela, the former Chief Financial Officer of TUT to the position of Deputy Vice Chancellor: Operations in breach of the applicable Institutional Statute, Institutional Rules and policy prescripts of the TUT.

 

Our investigation revealed that the first three issues were not substantiated. D.r Masuku’s serving of a third term as Chairperson of TUT Council was neither improper nor illegitimate as the TUT Council relied on the legal opinion obtained from Edward Nathan Sonnenbergs Incorporated in relation to the interpretation of the provisions of section 11(4) and (5) of Institutional Statute. In addition, Dr Masuku was elected Chairperson of the TUT Council by Council members present.

 

At the time of commencing and finalising the recruitment process for the post of Vice-Chancellor and Principal, Dr. Masuku was serving a second term as Chairperson of the TUT Council effective from 8 April 2016 to 7 May 2018. The appointment of Prof van Staden as Vice-Chancellor and Principal was with effect from 1 January 2018 until 31 January 2021.

 

Further, Prof. Van Staden met the required qualifications and experience as stipulated in the advertisement for the post of Vice-Chancellor and Principal of the TUT. The “Report of the meeting of the Institutional Forum held on 20 November 2017” reflects that upon finalisation of the recruitment and selection process, Prof. Van Staden was found to be appointable and his name was forwarded to the Institutional Forum and Senate for consideration. In this regard there was consultation with both Senate and the Institutional Forum with regard to the recommended candidate. There was no evidence to substantiate other allegations pertaining Prof. Van Staden’s appointment.

 

Regarding Mr. Magedi, he was seconded to the office of Vice-Chancellor with effect from 15 April 2019 until 31 March 2020 in terms of Rule 4.3(b) of the TUT Secondment Policy. The secondment did not constitute an appointment in a new post. No educational qualifications are required for secondment in terms of the policy.

 

However, we found that the TUT Council promoted Mr. S. Mahlalela, the former Chief Financial Officer to the position of Deputy Vice Chancellor: Operations in breach of the applicable Institutional Statute, TUT Institutional Rules. TUT’s current Policy of Acting on higher posts is only applicable to post levels 5 to 17 and the post Deputy Vice Chancellor: Operations in on level 2.

 

There is no policy or mechanism to regulate and manage acting appointments for senior management positions from levels 1 to 4 at TUT. This policy gap poses a potential risk for nepotism, abuse of power and favouritism by the person vested with the authority to make such acting appointments.

 

The TUT Council has acknowledged in its response to a section 7(9) notice issued by the Public Protector that the absence of a policy to regulate and manage acting appointments for senior management posts has created a policy gap and that TUT management will develop the policy and submit it for deliberation at TUT Council’s first meeting of 2022. Accordingly, this omission by TUT management constitutes improper conduct as envisaged in the Constitution and maladministration in terms of the Public Protector Act.

 

To remedy this improper conduct and maladministration, we direct the Chairperson of the TUT Council to take appropriate steps to have a policy or mechanism in place to regulate and manage acting appointments for senior management positions from levels 1 to 4. This must take place within the calendar year 2022.

 

 

IRREGULAR PROCUREMENT

 

Tshwale obo True Harvest v Services Sector Education & Training Authority

We investigated allegations of irregularities in relation to the Services Sector Education & Training Authority’s (Services SETA) appointment of a Service Provider for the Monitoring and Management of Legacy Projects, under Bid Number: Proc T255 (Bid T255), resulting in maladministration and improper conduct. The investigation came about as a result of a complaint lodged in June 2018 by Mr. Mohale Johnson Tshwale on behalf of True Harvest Trading (Pty) Ltd (True Harvest).

Mr. Tshwale alleged that the Services SETA advertised for the appointment of a service provider for the services referred to above on 25 January 2015 and that True Harvest responded to the advertisement on 13 February 2015 before the deadline for closure of the bid as stipulated in the advertisement.

He alleged a number of procurement irregularities including that all bidders were invited to make a presentation despite not meeting the minimum threshold of 70 points on functionality, that the extension of the validity period of the bid was in conflict with the Code of Conduct of the Supply Chain Management Practitioners and that the allocation of points to the bidders was inconsistent with the evaluation criteria contained in the bid documents.

He further alleged that, on 22 July 2015, True Harvest received a letter of regret, indicating that the company was unsuccessful in its attempt to secure a contract under Bid T255 and that despite raising his concerns of possible irregularities with the Services SETA and the National Treasury, their responses were unsatisfactory and the tender was not cancelled.

Upon a thorough analysis of the complaint, we decided to focus the investigation on two issues. First, we looked into whether there were irregularities during the appointment of a service provider under Bid T255, and if so, whether such conduct constitute improper conduct and maladministration in terms of the Constitution and the Public Protector Act. Second, we looked into whether the alleged maladministration by the Services SETA resulted in the improper prejudice to True Harvest Trading as contemplated in the Public Protector Act.

Our investigation showed that the allegations that the Services SETA improperly invited all nine (9) bidders to make a presentation despite not meeting the minimum threshold of 70 points on functionality is not substantiated.

However, the allegations that Bid T255 validity was irregularly extended in conflict with the RFB document and the SCM Policy is substantiated.

In accordance with section 4 of the Interpretation Act, 33 of 1957, the 90 days stipulated in Bid T255 expired on 14 May 2015. Therefore, the letters sent to all the nine bidders dated 2 June 2015 and signed by the former SCM Senior Manager, Mpumelelo Nhlangulela, purporting to extend the validity period of Bid T255 were irregular.

 

The extension of the tender validity period was inconsistent with the Supply Chain Management: A Guide to Accounting Officers/ Authorities of 2004 and the principle enunciated in case law, including Raubex Construction (Pty) Ltd v Road Agency Limpopo SOC and Another (Raubex) and SAAB Grintek Defence v South African Police Service (316/2015) [2016] ZASCA 104 (5 July 2016) (SAAB), which requires the said extension to take place before the expiry of the bid.

 

Both the Chairpersons of the Bid Evaluation Committee, Mr. Mahlomola Teffo and Bid Adjudication Committee, Mr. Andile Nongogo, signed the BEC/BAC Evaluation and Recommendation Report, which recommended the appointment of Dadani Trading as the successful bidder to be awarded Bid T255.

 

The then acting CEO, Ms. Liesel Kostlich, approved the letter of award dated 10 June 2015 that was sent to Dadani Trading. Consequently, the appointment of Dadani Trading by the Services SETA was void ab initio, meaning it had no legal effect. Therefore, the conduct of the Services SETA in this regard constitutes improper conduct as envisaged in the Constitution and constitutes maladministration in terms of the Public Protector Act.

 

With that being said, the allegation that the conduct of the Services SETA resulted in the improper prejudice to True Harvest Trading is unsubstantiated.

 

To remedy the improper conduct and maladministration established in this matter, we direct the Chairperson of the Servicse SETA must take note of the report in so far as the observations, findings and remedial action contained therein are concerned and as the Accounting Authority, assist in ensuring that the remedial action as provided for hereunder is expedited.

 

The Chairperson must ensure that the Services SETA considers taking corrective action against officials responsible for the irregular extension of Bid T255 and the subsequent appointment of Dadani Trading CC, in order to prevent the recurrence of the acts of maladministration and improper conduct uncovered during the investigation, in accordance with paragraph 27.3.3 of the SCM Policy, within 30 working days from the date of issuing of this report.

 

In addition, the Chairperson must ensure that the Services SETA in all its provisioning for goods and services, complies with legislation and any other prescript regulating public procurement processes based on principles enshrined in section 217 of the Constitution.

 

Shabangu v Department of Public Works and Infrastructure (Report No. 35 of 2021/22)

 

We investigated allegations of improper conduct and maladministration by the Department of Public Works and Infrastructure (DPW) relating to an agreement to pay an outstanding amount to a subcontracted supplier of building materials for the construction of the Tweefontein Police Station in the Mpumalanga Province in 2009-2010. The investigation is a result of a complaint lodged in December 2018 by Mr. Roux Shabangu, a member of Roux Property Development Africa CC (RPDA). In the main, Mr. Shabangu alleged that:

 

1. The DPW awarded a tender for the construction of the Tweefontein Police Station to TTR Building Construction (TTR) on 20 March 2008. TTR subsequently experienced financial difficulties and on 1 April 2009, ceded the contract for assistance to RPDA, with the approval of the DPW;
    
2. TTR/RPDA ran into financial difficulties to purchase building material for the construction project. Alert Steel, a supplier of building material, agreed to provide TTR/RPDA with building material on credit, but insisted on a surety for payment;

 

3. Mr. Shabangu signed surety for the payment of the outstanding amount to Alert Steel, on behalf of RPDA;

 

4. On 12 August 2009, the DPW undertook in writing to settle Alert Steel’s outstanding invoices for building material that was already delivered to the construction site and to pay Alert Steel directly for all materials to be ordered towards the completion of the construction project. The DPW subsequently failed to comply with this undertaking;

 

5. TTR/RPDA then approached the DPW to negotiate an agreement that the DPW would pay Alert Steel directly "all monies certified and payable to TTR/RPDA”;

 

6. A Memorandum of Agreement (MOA) was entered into accordingly between TTR, RPDA, Alert Steel and the DPW on 7 April 2010. In terms of the MOA, the amount due to Alert Steel by the DPW, as per the undertaking of 12 August 2009, was more than R4.7million (R4 742 395.56) as at 19 March 2010.

 

7. Mr. Shabangu alleged that the DPW never paid Alert Steel for the building material delivered at the construction site, albeit the two payments that were made. In July 2010, Alert Steel instituted action against RPDA for the outstanding payment of the building material. As a result of the non-payment by the DPW, RPDA had to pay Alert Steel an amount of about R6.8million.

 

8. Mr. Shabangu alleged further that he and RPDA were prejudiced due to the failure of the DPW to comply with its undertaking and the MOA to pay the outstanding amount to Alert Steel directly.

 

9. After numerous attempts to resolve the matter with DPW and to obtain payment for the amount that Mr. Shabangu had to pay to Alert Steel, he was verbally informed by the DPW that they are withholding payment of the money, due to overpayment that was made to one of his other companies.

 

Having analysed the complaint thoroughly, we decided to whittle the matter down to the following three issues, which we investigated:

 

1. Whether DPW officials improperly failed to manage and administer the contract for the construction of the Tweefontein Police Station in accordance with the responsibilities provided for in the PFMA, Supply Chain Regulations and its own supply chain management system, thus amounting to improper conduct and maladministration as envisaged in the Constitution and the Public Protector Act;

 

2. Whether the DPW made an undertaking and entered into an agreement on 12 August 2009 and 7 April 2010 respectively, to pay Alert Steel, a subcontracted supplier of building material, an outstanding amount of more than R4.7million (R4 742 395.56), independent from and in addition to its principal agreement with TTR for the construction of the Tweefontein Police Station, and improperly failed to make payment, thus amounting to improper conduct and maladministration as envisaged in the Constitution and the Public Protector Act; and

 

3. Whether or not the DPW was unlawfully enriched or received an improper advantage at the expense of TTR or RPDA, as envisaged in the Public Protector Act, as a result of the latter’s settlement of a claim by Alert Steel to the amount of R6.8million for monies due and payable to Alert Steel for the supply of building material for the construction of the Tweefontein Police Station.

 

Our investigation revealed that only the first issue is substantiated. DPW Officials improperly failed to manage and administer the contract for the construction of the Tweefontein Police Station in accordance with the responsibilities provided for in the PFMA, Supply Chain Regulations and its own supply chain management Policy thus amounting to improper conduct and maladministration.

 

While Mr. Shabangu’s allegations of improper advance payments and irregularities pertaining to the award of the contract and manipulation of the tender price (underquoting) to secure the contract, are not substantiated, it nevertheless became clear during the course of the investigation that the conduct of at least one of the DPW officials in relation to the management and administration, was improper and constitutes maladministration.

 

The DPW awarded a tender for the construction of the Tweefontein Police Station to TTR on 20 March 2008.

 

On 1 April 2009, TTR entered into a cession agreement purporting to transfer all its right, title, interest and obligation in terms of the contract no. NST 07/048 to RPDA. According to legal advice obtained by DPW internally, it later ratified the cession implicitly by consenting and acknowledging the cession in a MOA with all the parties concerned in April 2010.

 

DPW confirmed that no prior departmental approval, as envisaged in the General Conditions of Contract and prescribed in section 36 of the PFMA, the Supply Chain Management Guide For Accounting Officers/Authorities, issued by National Treasury in 2004, read with the Supply Chain Management (SCM) Policy of the DPW, and supplemented by the Contract Management Guide, issued by National Treasury in 2010, was sought by TTR or granted for the cession of the principal contract for the construction of the Tweefontein Police Station from TTR to RPDA.

 

As a result, there is no indication of any assessment of the risks that impacted on TTR’s ability to execute its contractual obligations in terms of the principal agreement, to ensure that those risks would be sufficiently addressed through the cession of the contract, and that RPDA did in fact have the ability to carry out the contract.

 

DPW later became aware of the purported cession agreement as well as the fact that the former Head of Projects in the Mpumalanga Regional Office, Mr. J. Nyalungu had tacitly and wrongfully accepted and agreed to the cession without the requisite authority and despite the fact that it did not comply with Departmental prescripts.

 

The failures on the part of its official(s) had serious consequences for the governance of the project and the ability of DPW to manage and mitigate and address the risks which threatened to derail (and in fact derailed) the successful execution of the Project, including the capacity of TTR and/ or RPDA to source the material and suppliers required for the completion of the project. 

 

As a result, RPDA found itself in the same boat as TTR to the extent that it did not have sufficient capital or a credit profile to ensure the uninterrupted supply and delivery of essential building materials required for the completion of the project, hence the cession in security between TTR, RPDA and Alert Steel, and the need for intervention by DPW to divert payments due and payable to TTR to Alert Steel.

 

The Official(s) responsible for and involved in the management and administration of the project failed to comply with his/ their duties in relation to the effective, efficient, economic and transparent use of resources, and the duty to ensure that the administration and management of contractual obligations comply with internal prescripts and their responsibilities as envisaged in sections 38, 44 and 45 of the PFMA.

 

The wrongful action of its official(s) resulted in the appointment of a second contractor to complete the project at a cost of R13million and an additional expenditure of at least R10 million over and above the initial contract limit.

 

The actions of the DPW official(s) accordingly constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration on the part of DPW as envisaged in section 6(4)(a)(i) of the Public Protector Act.

 

To remedying this improper conduct and maladministration, we take into account that the DPW has, in terms of the submissions provided to the investigation team in the course of this investigation, submitted information and evidence to confirm that the matter was properly investigated and that identified deficiencies and irregularities have been addressed and disciplinary action was taken against some of the officials implicated in this matter.

 

We further noted that the DPW issued a circular, albeit belatedly in December 2020, in terms of which all employees including Deputy Directors-General were directed to ensure that “any variation, amendment, extension and cession of any portion of contracts” should be undertaken through the approval process of the bid committee and vetting by the Contract Administration Unit before authorizing the work or ceding of work.

To prevent a recurrence the Accounting Officer must take steps to audit all current (at the time of the release of the this Report) building or construction contracts exceeding the value of R10 million, to identify any contract or portion thereof that have been the subject of variation, amendment, extension and cession, and to confirm adherence to the above-mentioned Circular.

EXECUTIVE ETHICS

 

Keeka v Mshengu

We investigated an alleged breach of the Executive Ethics Code by the MEC for Education of the KwaZulu-Natal Provincial Government, Mr. Kwazi Mshengu. The investigation followed a complaint by Dr. I. Keeka, a Member of the KwaZulu-Natal (KZN) Provincial Legislature. This was on the back of a Sunday Times newspaper article of 10 November 2019 under the headline “MEC’s faulty Merc scam”.

In this article, it was alleged that a forged letter from the car manufacturing company, Mercedes Benz South Africa had been created to enable the MEC not to use the official vehicle previously used by his predecessor and instead to use hired vehicles, at a huge expense to the state.

The newspaper article stated inter alia in this regard that: “a KwaZulu-Natal MEC has been caught using an elaborate scam to justify his not using the state car used by his predecessor-instead blowing hundreds of thousands of rand in tax-payer’s money on car hire. Officials answering to education MEC Kwazi Mshengu appear to have forged a letter from Mercedes Benz dealership advising him not to make use of a one year old Mercedes Benz GLE 350 because it was so unsafe it could kill him”.

Dr. Keeka stated that “it is possible that in the event that there is confirmation of this, Honourable Mshengu will also be in breach of the Code of Conduct and Ethics of the KZN Provincial Legislature applicable to all members. It is my view that a determination or decision in this specific regard is imperative in the final findings by your office.”

After a thorough study of the complaint, we decided to focus the investigation on the following two issues:

1. Whether MEC Mshengu used hired vehicles in his official capacity at state expense instead of an official car, and if so, whether his conduct in this regard was improper and constitutes a breach of the Executive Ethics Code.

 

2. Whether the purchase of a new official vehicle for MEC Mshengu by the KZN Department of Education in December 2019 was not in accordance with the relevant law and other prescripts regulating the procurement of official vehicles for Members of the Executive and if yes, whether such conduct was improper and constitutes maladministration.

 

It is not in dispute that vehicles were hired for the MEC to use in his official capacity at state expense instead of an official car from the time he took office in May 2019 to November 2019.

However, no evidence was found that he was involved in any “elaborate scam” not to use the official car that was used by his predecessor. There is also no evidence that he or the department was involved in the forging of a letter, ostensibly from Mercedes Benz Garden City Motors, dated 2 November 2019. The origin of this letter could not be determined during the investigation.

 

The evidence shows that MEC Mshengu relied on the information provided to him by the Head of Department (HOD) in respect of the non-availability of the official car and that he had no reason not to accept it. It was also at the insistence of the HOD that MEC Mshengu accepted that vehicles would be hired for him for official purposes.

 

As it is the responsibility of the department in terms of the Ministerial Handbook and the Guide for Members of the Executive 2019 (Guide) to provide MEC Mshengu with an official vehicle, he had no positive duty in this regard.

 

It therefore cannot be concluded that MEC Mshengu acted in a manner that is inconsistent with his position and therefore in breach of the Executive Ethics Code, acted improperly or that he was involved in maladministration.

 

We also found that the purchase of a new official vehicle for MEC Mshengu by the KZN Department of Education in December 2019 was not in accordance with the relevant laws and other prescripts regulating the procurement of official cars for Members of the Executive.

 

There is no indication in the evidence that the HOD made any attempt to obtain a “detailed mechanical report by the vehicle manufacturer or approved dealer” in order to take an informed decision on the replacement of the Mercedes Benz as the official vehicle, as stipulated by paragraph 2.9 of the Guide, when he commenced the process in July 2019.

 

It was only after the Sunday Times article that the HOD obtained a technical report from Mercedes Benz SA. This report indicated that the engine of the vehicle had to be replaced. However, there was no indication that it was otherwise in a poor condition.

 

The purchasing of a new vehicle for the official use of MEC Mshengu was therefore not justified in terms of paragraph 2.9 the Guide. Under the circumstances, it is concluded that the approval by the HOD of the purchasing of the BMW X4 for the official use of MEC Mshengu was not in line with the provisions of the Guide and his responsibilities as the accounting officer of the Department in terms of section 38 of the Public Finance Management Act, 1999 (PFMA).

 

It was therefore improper and amounts to maladministration. It also resulted in irregular and fruitless and wasteful expenditure, as contemplated by section 1 of the PFMA. The conduct of the HOD accordingly constitutes improper conduct as envisaged in the Constitution and maladministration in terms of the Public Protector Act. 

 

To remedy this improper conduct and maladministration, the we direct the Premier of KZN to, in terms of section 3(6) of the EMEA within a reasonable time, but not later than 14 days after receiving this report, submit a copy thereof and any comments thereon, to the Provincial Legislature.

 

In addition, the Provincial Treasury must take appropriate steps in terms of Regulations 4.1.3 and 4.1.4 of the Treasury Regulations to ensure that an investigation is conducted into the conduct of the HOD and that of the other officials of the department involved in the purchasing of a new vehicle for the official use of MEC Mshengu as referred to in this report. This must happen within 60 days from the date of this report.

 

We look forward to the full implementation of remedial action in these reports. We would further like to applaud those state functionaries, who have not only owned up to their shortcomings but offered to rectify those shortcomings.

 

This has been a productive year for us as an institution. And this goes for both our administrative and core functions. The administration has ensured that we achieve our second successive clean audit while the core function continues to see to it that we live up to our constitutional mandate of investigating, reporting on and remedying improper conduct in all state affairs or in the public administration, in all spheres of government.

 

I would like to thank the staff of the Public Protector South Africa led by the Chief Executive Officer, Ms. Thandi Sibanyoni and the Deputy Public Protector, Adv. Kholeka Gcaleka. I would also like to extend a word of gratitude to our external stakeholders, including the public we serve, the public administration which we help to ensure clean governance and Parliament, which holds us to account.

 

I also wish to thank the media for amplifying our voice so that it reaches the grassroots communities and the ombudsman community here in Africa and around the globe. We learn a lot from you.

 

I wish you all a Merry Christmas and a prosperous New Year. Stay safe on the roads and observe COVID-19 safety measures to safeguard yourself and loved ones.

 

Thank you.