Statement by Public Protector Adv. Busisiwe Mkhwebane during a virtual media briefing held in Pretoria on Tuesday, November 30. 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;
The people of South Africa;
Members of the media;
Ladies and gentlemen;
Good day and thank you all for honouring our invite.
We have called this briefing today to inform the public about the progress we have made on a few investigations that we recently concluded.
As you may be aware, the publication of our findings is informed by section 182(5) of the Constitution, read with sections 8(1) and 8(2A) (a) of the Public Protector Act 23 of 1994.
Only three reports are on the agenda this afternoon. Two of the three are what we call Closing Reports. This denotes reports which result from cases that are no longer being pursued on the grounds that the allegations giving rise to the investigations are unsubstantiated or that we do not enjoy jurisdiction or that other competent forums are seized with the same matters.
The third is a final report in which we have made adverse findings against the respondent and proceeded to take appropriate remedial action as envisaged in section 182(1)(c) of the Constitution. Let’s start with the first two.
Vavi obo Chettiar v Gordhan and others (Report No. 48 of 2021/22)
We investigated allegations of failure by the Minister of Public Enterprises, Mr. Pravin Gordhan, the Board of Directors of Eskom and Eskom Holdings Soc Ltd to investigate a complaint relating to various allegations of maladministration and improper conduct against Mr. Jan Oberholzer and subsequent improper application of the Protected Disclosure Act 26 of 2000 as amended (PDA).
Mr. Zwelinzima Vavi lodged the complaint on 10 September 2020 on behalf of Mr. Mark Chettiar who was an employee of Eskom. In essence the Complainant alleged that:
- He made a protected disclosure in June 2019 to the Commission of Inquiry into State Capture regarding certain contracts entered into between Eskom and a number of construction companies, citing the R42 million contract with Aveng (Africa) (Proprietary) Limited as the one which points to corruption, abuse of power, nepotism and corporate mismanagement, for which the Complainant is now being victimised by Eskom.
- Eskom entered into a contract with Aveng Construction, which obliged Eskom to pay an amount of R42 million to it, although such payment was not warranted. The Commission recommended that Eskom should not pay this claim, and a similar conclusion was arrived at by an internal audit commissioned by the Complainant;
- Serious allegations that the Complainant had made against the Chief Operations Officer, Mr. Oberholzer were also not dealt with despite having been brought to the attention of Minister of Public Enterprises, Mr. Gordhan;
- He sent letters to the Chairperson of the Public Enterprises Portfolio Committee, Honourable Mr. Khaya Magaxa, MP, and the Chairperson of Standing Committee on Public Accounts (SCOPA), Honourable Mr. Mkhuleko Hlengwa, MP, wherein he expressed his concern about the state of affairs at Eskom;
- On 12 and 18 March 2020, the South African Federation of Trade Unions (SAFTU) sent correspondences to the Chairperson of the Board of Eskom, Prof. M. Makgoba, requesting that he should act on allegations of misconduct lodged against Mr. Oberholzer;
- The allegations levelled against Mr. Oberholzer included inter alia that he participated in meetings and supported the extension of a contract between Eskom and Stefanutti Stocks, yet he failed to disclose that he owned shares in that company, and that Mr. Oberholzer had pressed for the payment of R42 million to Aveng Construction by Eskom despite the latter not performing in line with its required contractual obligations;
- Following the complaint which the Complainant had lodged with Prof. Makgoba, Eskom appointed Adv. N Cassim SC to investigate the allegations of impropriety and corruption levelled against Mr. Oberholzer in various digital media publications in order to prepare and submit a report with his findings and recommendations to the Board of Directors of Eskom within 10 working days of receiving the brief;
- The Cassim SC Report was full of inconsistencies and contradictions, and he attached a copy of the said report for ease of reference. The Complainant mentioned that Cassim SC recommended that “to enable a proper ventilation of this issue to be determined. More so, having in mind the intervention of representatives of the Zondo Commission you have made, it would appear, certain preliminary findings on this very issue. Eskom must factor into consideration that such payment is presently part of litigation between Eskom and Aveng. However, in the interest of transparency, accountability and fair play, there is no reason why this issue cannot be subject matter of a disciplinary hearing (sic)”;
- After two months of submitting the said report to Eskom, Cassim SC submitted a follow-up report in which he recommended that the disciplinary action proposed against Mr. Oberholzer be held in abeyance until a High Court litigation initiated by Aveng Construction against Eskom is finalised;
- In September 2019, the Complainant lodged a grievance against Mr. Oberholzer in terms of Eskom internal grievance procedure. Subsequently, a disciplinary hearing was held in October 2019, and the outcome of the hearing was submitted to Eskom, wherein both parties considered the matter closed and concluded that the grievance was finalised;
- In January 2020, Mr. Oberholzer charged the Complainant with “unfounded allegations against the COO during the grievance hearing”, and this was contrary to Eskom’s grievance procedure which provides that “no employee or representative shall suffer any prejudice or victimisation as a consequence of lodging a grievance, or attending to one”;
- In late January 2020, the Complainant was on sick leave and Mr. Oberholzer informed him through an email that he has been transferred from Group Capital Division to Human Resources, with effect from 1 February 2020. The Complainant mentioned that his medical condition was as a result of victimisation from work;
- Subsequently, the Complainant lodged a complaint of unfair labour practice with the Commission for Conciliation Mediation and Arbitration (CCMA), for his unilateral transfer. The conciliation process of the matter was held on 13 March 2020, wherein Eskom attempted to offer the Complainant compensation provided that he resigns from Eskom;
- In April 2020, the Group Human Resources Executive of Eskom, Ms. Elsie Pule informed the Complainant to report to his new portfolio/position and fulfil his new obligations as expected, and failure to do so would result in further disciplinary action against him. The Complainant alleged that throughout his employment with Eskom, he received an exceeded score for his performance assessment, and his performance was recognised in a form of merit awards;
- Mr. Oberholzer and Mr. S Mantshantsha made various statements to the media, wherein they mentioned that the issue concerning the Complainant, was his poor performance at work;
- That Eskom made an announcement that it was bringing back 60 white retired engineers as it was facing a shortage of engineering skills, yet it is transferring him with 20 years of technical and strategic experience at Eskom from operations to Human Resources; and
- On 10 September 2020, the Complainant approached us to intervene and investigate his complaint against Eskom.
Following a thorough assessment of the complaint, including a preliminary investigation through which we sought to determine the merits of the complaint and decide how the matter should be dealt with, we decided to focus on whether Minister Gordhan, the Board of Directors of Eskom and Eskom Holdings SOC Ltd failed to investigate the complaint relating to various allegations of maladministration and improper conduct against Mr. Oberholzer, and improperly applied the PDA, and if so; whether such conduct amounts to maladministration and improper conduct in terms of section 6(4) of the Public Protector Act.
Our investigation revealed that the allegation that Minister of Public Enterprises, Mr. Gordhan, BoD of Eskom and Eskom failed to investigate the complaint relating to various allegations of maladministration and improper conduct against Mr. Oberlhozer, and subsequent improper application of the PDA is unsubstantiated.
Eskom investigated complaints lodged by the Complainant relating to various allegation of maladministration and improper conduct against Mr. Oberholzer, and issued three reports, which were Mkhawane SC Report dated 31 October 2019, Cassim SC Report dated 4 April 2020, and Eskom Report dated 24 August 2020, respectively. The said reports exonerated Mr. Oberholzer of various allegations levelled against him.
The Complainant referred the issue of unfair labour practice and alleged subsequent occupational detriment suffered after he lodged a protected disclosure to the CCMA on 18 February 2020. The CCMA issued a Ruling on 9 November 2020. The matter was dealt with by the CCMA in line with the provisions of section 141(1) of the LRA.
If the Complainant is not satisfied with the outcome of the CCMA Ruling, he should refer the matter to the Labour Court as required by section 141(4) of the LRA. Therefore, the Public Protector does not have jurisdiction to review the Ruling of the CCMA.
Consequently, the issue relating to the allegations that Eskom entered into a contract with Aveng Construction, which obliged Eskom to pay an amount of R42 million to it, although such payment was not warranted, was decided by the South Gauteng High Court on 11 September 2020, wherein Eskom was directed to pay Aveng Construction the amount of R40 087 353.06, together with interest. By virtue of Section 6(6) of the PPA, the Public Protector cannot investigate court decisions.
Further, Eskom denied that they ever had any project named Odendaal Project as such it could not comment on this issue. Therefore we could not find that the conduct of Eskom constitutes improper conduct as envisaged in the Constitution and maladministration or abuse of power as envisaged in the Public Protector Act.
Accordingly, we are unable to make any findings nor take any remedial action. In light of the afore-going, we have therefore decided not to pursue the matter any further and thus finalise it by means of a closing report.
Gardee v Mahumapelo (Report No. 36 of 2021/22)
We investigated allegations of a violation of the Executive Ethics Code by the former Premier of the North West Provincial Government Mr. Supra Mahumapelo in relation to his alleged facilitation of the delivery of Bonsmara cattle to the former President, Mr Jacob Zuma’s homestead through Agridelight Training and Consulting (Pty) Ltd.
The report relates to an Executive Members’ Ethics Act (EMEA) complaint lodged with the Public Protector in terms of section 4 of the EMEA on 23 April 2018 by Mr. Godrich Gardee, the former Secretary-General of the Economic Freedom Fighters (EFF) and former Member of Parliament.
The complaint was based on a Sunday Times newspaper article on 22 April 2018 in which it was reported that “[a] herd of cattle costing R1.5-million and meant for emerging farmers was instead delivered to Nkandla - as a gift to Jacob Zuma from his political ally, North West Premier Supra Mahumapelo” and that the “generous gift, paid for with public funds is under investigation”.
Mr. Gardee stated in his complaint that he would like to draw the Public Protector’s attention to “the particular involvement of the then President of the Republic, Mr. J.G Zuma on the receipt of stolen goods and the current Premier of the North West, Mr. Mahumapelo’s abuse of public trust and fiscus for private benefit”.
Mr. Gardee did not allege violation of a specific clause of the Executive Ethics Code apart from indicating that the complaint was lodged in terms of section 4(1) of EMEA and requesting the Public Protector to investigate the receipt of cattle by the former President and the involvement of the former Premier in the alleged facilitation of the delivery of the said gift of cattle to the former President.
We focused the investigation on whether the former Premier, Mr. Mahumapelo violated the Executive Ethics Code in respect of his alleged facilitation of the delivery of Bonsmara cattle to the former President’s homestead, and if so whether such conduct amounts to improper conduct
We found that the allegation that the former Premier violated the Executive Ethics Code through his involvement in the facilitation of the delivery of the Bonsmara cattle to the former President, is not substantiated.
From the evidence sourced independently and also provided to the Public Protector, it is apparent that the former President did receive cattle from Agridelight, as confirmed by the payments made for the cattle by Agridelight, the delivery of the cattle and the submission of Agridelight Managing Director, Mr. Bolokang Derrick Montshwe.
Although Mr. Montshwe contends that he personally donated the cattle to the former President, his use of the Agridelight’s FNB account and not his personal account to pay for the transaction does not support his version. However, the matter pertaining to the Agridelight’s flow of funds under Mr. Montshwe’s management is receiving the attention of the law enforcement agencies. To this end, the Directorate for Priority Crime Investigation and the Asset Forfeiture Unit are seized with the matter.
It is also clear from the evidence relating to the payments made for the delivery of cattle that the Department itself did not fund the payments for the said donation and delivery of cattle to the former President.
Therefore no state funds were utilised for the payment and delivery of cattle to the former President which would have indicted the Public Protector to investigate and pronounce on that in line with her mandate and jurisdiction.
There is also no evidence to indicate that the former Premier, abused public trust and the fiscus for his private benefit, thereby violating clause 2.1 and 2.3 of the Executive Ethics Code.
In light of the afore-going, we have therefore decided not to pursue the matter any further and thus finalise it by means of a closing report.
Ngcobo v National Department of Health (Report No. 63 of 2021/22)
We investigated allegations of undue delay by the National Department of Health to address the challenges experienced by Clinical Associates and to process “The Report of the Clinical Associate National Task Team 2017” for consideration and possible approval.
The investigation resulted from a complaint lodged on 26 April 2019 by Mr. Sanele Ngcobo in his capacity as a Clinical Associate and Secretary General of the Professional Association of Clinical Associates in South Africa (PACASA). Clinical Associates are mid-level healthcare workers who work under the supervision of medical doctors, caring for patients. In most cases, they work in disadvantaged and rural areas. In the main, the Complainant alleged that:
- The introduction of the Clinical Associates profession into the South African health system came about as a result of a recommendation of the Pick Report for Human Health Resources in 2001, which recommendation was endorsed by the erstwhile Minister of Health, the late Dr. Manto Tshabalala-Msimang in 2002.
- Since inception of the profession, the first cohort of Clinical Associates began practising in January 2011.
- To better understand the value and future of the Clinical Associate as a medical mid-level worker, the department established a Clinical Associate National Task team. Its brief was to review what has been learnt over the past ten years of training over 900 and appointing almost 700 Clinical Associates, and how this applies to the current challenges faced by the health system. The work of the Task Team culminated in the “Report of the Clinical Associate National Task Team 2017: Clinical Associate Training and Profession – Current Successes and Future Steps” (the Task Team Report). The report was intended to aid the department in formalising the way forward for Clinical Associates, with the approval of the National Health Council.
- The report addressed several key issues relating to the Clinical Associates profession and outlined recommendations for these challenges being experienced by Clinical Associates.
- Since finalisation of the report however, the department has unduly delayed and/or failed to adopt and implement the recommendations therein, thus the challenges experienced by Clinical Associates relating to integration within the health system, conditions of service and their development continue to persist.
It was Mr. Ngcobo’s contention that the complainants were, in the circumstances, aggrieved by the conduct of the department as set out above and requested our intervention in the matter
Having studied the complaint thoroughly, we decided to focus the investigation on whether the department has unduly delayed to address the challenges experienced by Clinical Associates and to process the Task Team Report for consideration and possible approval.
We found that the allegation that the department has unduly delayed to address the challenges experienced by Clinical Associates and unduly delayed to process the Task Team Report for consideration and possible approval is substantiated.
There was undue delay on the part of the department in taking the report through internal channels for its consideration and possible adoption following its completion in 2017, including relevant governance structures such as the internal audit and audit committees. It has been conceded during the subpoena deliberations of 09 June 2021 that the report never served before the Executive Committee or before the National Health Council, hence the undertaking from the department that the report will now be taken through the appropriate channels for proper consideration. It is further noted that the undertaking comes approximately four years after the finalisation of the task team report and only after the intervention from the Public Protector’s Office.
The department conceded through its submissions to the Public Protector that there was a lack of formal communication with the Complainants, particularly regarding the challenges which gave rise to the non-implementation of some of the recommendations of the Task Team report. In this regard it was noted that the concession was further accompanied by the undertaking that going forward the department will make the effort to communicate with the Complainants regarding this matter, particularly to ensure that they formally engage with complainants by 16 July 2021.
In terms of section 195(1) (a) of the Constitution, a high standard of professional ethics must be promoted and maintained and development- orientation (section 195(1) (c)) should have been promoted and adhered to in sculpting a way-forward for the profession since the time of its inception.
Where challenges presented themselves in the adoption and implementation of the recommendations contained in the task team report, the department was required to act with transparency in terms of section 195(1)(g) of the Constitution and make this known to the Complainants who are most affected by issues regarding non-implementation of the recommendations, for purposes of displaying accountability in terms of section 195(1)(f) and ensuring that the needs of the Complainants are responded to in line with the recommendations set out in the task team report and as required in terms of section 195(1)(e) of the Constitution.
Had the department acted timeously and appropriately upon receipt of the task team report and ensured that it went through the appropriate channels for consideration and possible adoption, the department would have displayed good human-resource management and career-development practices, to ensure that human potential is maximised and cultivated as required in terms 195(1) (h) of the Constitution, in ensuring that the report is properly dealt with.
In terms of section 3(1)(c) of the National Health Act the Minister of Health must within the limits of available resources determine the policies and measures necessary to protect, promote, improve and maintain the health and well-being of the population. The national department has, since its inception of the Clinical Associate profession into the South African health system, been enjoined to provide policy determination and strategic way forward for Clinical Associates, in as far as they were introduced for purposes of the betterment of the health system.
However, observing from the issues giving rise to this complaint, there has not been a proper way-forward to facilitate adequate integration and development of the Clinical Associates profession i.e. through taking the task team report through the Executive Committee and the National Health Council for a way-forward to be established for Clinical Associates. Furthermore, there was evident neglect by the department to take the report through appropriate governance structures such as the internal audit and audit committees in order to strengthen good governance practices, to review the department’s compliance with legal and regulatory provisions, to make appropriate recommendations to the Accounting Authority who in turn had a responsibility to consider the implementation of such recommendations as required in terms of Treasury Regulations 3.1 and 3.2 and Public Finance Management Act sections 76(4) (d) and 77 .
The conduct of the department 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 Minister of Health must ensure the following:
- As undertaken by the department that there would be formal engagement with the Complainants pertaining to this matter, the department is to within 30 working days of this report to furnish the Public Protector with records pertaining to this engagement and where applicable furnish the Public Protector with record of any other subsequent engagements relating to the matter thereafter;
- Regarding the undertaking made by the department to re-engage the Department of Public Service and Administration to motivate for the holistic review of the Occupational Specific Dispensations as a remuneration framework in the Public Health Sector that is inclusive of Clinical Associates and sustainable, the department is to within 60 working days of date of this report furnish the Public Protector with feedback regarding the outcomes of these engagements and where applicable furnish monthly progress updates on the matter thereafter until conclusion of the matter. Should the salary structure be included in the OSD, then the department should also ensure that the corresponding costs related to the Compensation of Employees (COE) should be met within budgetary allocations (VOTE) in order to avoid unauthorised expenditure, as required in terms of Treasury Regulation 8.3 read with the PFMA section 76(4) (b) and Treasury Regulation 9 read with PFMA sections 38(1) g and 76(2) (e).
- Regarding the undertaking made by the department to convene a meeting for purposes of synthesizing the task team report with Executive Committee and Provincial Departments together with the undertaking to report back on this engagement, the department is to within 60 working days of date of this report furnish the Public Protector with feedback regarding these meetings, and where applicable provide monthly progress updates regarding same thereafter.
- Regarding the undertaking made by the department to conduct a review of the program performance thus far to assess various aspects of the program, including uptake since its establishment; impact on health services; career pathing/advancement prospects of Clinical Associates; status of mid-level policy interventions generally and other parameters that may be of relevance to guide decisions on the program, the department is to within 30 working days of date of this report to provide feedback regarding the review proposal tabled with the National Health Council on 18 November 2021;
- In line with the proposal made by the department for the process to be followed for review, the department is to, within 30 working days of date of this report and thereafter every 60 days provide the Public Protector with monthly reports on the procedure set out for the review.
- The following approach to the review was proposed by the department to be followed:
- Finalize and sign-off terms of reference for the review in consultation with relevant stakeholders – to be completed by 31 March 2022.
- Avail funding for the review process during this financial year 2022/2023;
- Source the Service Provider to perform a Review using both quantitative and qualitative methodology (Immediately after the signing of the TORs) by January 2022;
- Conduct and finalize the review by 30 November 2022;
- NHC to sign-off the recommendation and publish them by March 2023;
- The department to source funding to implement the Resolution of the NHC during the MTEF in October 2022 for the 2023/2024 financial year; and
- The deparment to implement the Resolution of the NHC during the financial year 2023/2024.
- Regarding the undertaking to engage with the Health Professions Council of South Africa to request that the matter of prescribing rights be finalised without further delay, the department is to within 30 days of issue of the final report provide monthly progress reports regarding the finalisation of this process, until its conclusion.
We are pleased with the Minister of Health’s exemplary cooperation during the investigation and his commitment to implement the remedial action. We look forward to the implementation of the remedial action so that we can take the complainants as close as possible to where they would have been had it not been for the improper conduct and maladministration. We are available to assist with the implementation.
Thank you, ladies and gentlemen, for your indulgence. Copies of these reports will be shared with the affected parties shortly. The public will also be able to access copies through our website. We will take questions, if any, to clarify the contents of this statement.