South Africa: Public Protector Releases Investigation Reports

Left: Public Protector Busisiwe Mkhwebane. Right: Minister of Public Enterprises Pravin Gordhan.
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(via Twitter)

I have called this media briefing today to reveal, to the public, my findings in respect of investigations that I have concluded since the last time we gathered here.
The findings are carried in the reports, which I hereby publish in compliance with section 182(5) of the Constitution read with section 8(1) of the Public Protector Act No. 23 of 1994.
One of the reports I'll be releasing relates to alleged maladministration and improper conduct in connection with a MOU entered into between the Gauteng Government and Gauteng Horseracing Industry in 1997, leading to the corporatisation of horseracing industry in South Africa.


Other reports involves City of Tshwane, Carol Bouwer Productions, PRASA, Mpumalanga Office of the Premier, former Secretary of the Parliament of SA and others
Some of you may be aware that I have already released eleven (11) other reports through our online platforms in recent days and you may have reported on some of them.

They are on the website http://www.pprotect.org
Before I delve into my findings , I wish to remind all our stakeholders of the words of Chief Justice, Mogoeng on the occasion of the delivery of that landmark judgment in the case of the EFF and others v the Speaker of the National Assembly and others.


Chief Justice said: “[The PP powers] are indeed very wide powers that leave no lever of government power above scrutiny, coincidental “embarrassment” and censure ...
Her investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw State power.
"The predicament though is that mere allegations and investigation of improper or corrupt conduct against all, especially powerful public office-bearers, are generally bound to attract a very unfriendly response.
"An unfavourable finding of unethical or corrupt conduct coupled with remedial action, will probably be strongly resisted in an attempt to repair or soften the inescapable reputational damage.
"It is unlikely that unpleasant findings and a biting remedial action would be readily welcomed by those investigated.”


I quote these prophetic words from the highest court in the land with the hope that they will help stakeholders makes sense of events that have dogged this institution in the recent past.
Having said that, let me express heartfelt words of gratitude to all the state functionaries we dealt with during the investigation of all the matters I’m reporting on today.
When my team and I wrote to the implicated parties in these matters, requesting their response to the allegations levelled against them, we got an all-round positive response.
There was satisfactory cooperation and compliance.


They did not filibuster, with clear intentions to delay and eventually frustrate our investigations.
They did not baselessly accuse me and my office of being influenced by politics or drag us into party-political factionalism with no shred of evidence to back up such wild claims.
They also did not leak confidential correspondence to the media, with a view to casting a shadow of doubt on the integrity of our investigations
They did not seek to paint us in a negative light in the eyes of the public while portraying themselves as victims
They submitted themselves to scrutiny because they understood that this is a legitimate constitutional institution whose work is to investigate alleged or suspected improper or prejudicial conduct in state affairs, report on that conduct and take appropriate action.


They also understood that while they do not have to like the head of this institution, they have a constitutional duty to support the institution and to not interfere with its functioning.
I trust that all other state functionaries will emulate this conduct with the understanding that we are all equal before the law and that there are no holy cows.
I hope that no one will see scrutiny by this institution as a source of irritation but a much needed effort to entrench a culture of good governance and accountability, and a pushback against impunity.
This is also a week during which judgment was handed down in the review application by the Democratic Alliance (DA) and the Council for the Advancement of the Constitution (CASAC), prompting some quarters of society to go on a frenzy – calling for my removal from office.
In the previous, ill-fated attempt by DA to have Parliament kickstart a similar process, I made a comprehensive submission in which I pointed out that a finding by court that I am wrong in law, in relation to an investigation I conducted, does not warrant removal from office.
It does not even amount to incompetence.


That is why the decisions of superior courts such as the SCA and ConCourt to set aside or overturn the decisions of lower courts are never grounds for the removal from the bench of the judges who would have written the overturned rulings or even to brand them incompetent.
Then you have some mischievous people going on platforms to distort my statements, saying I said – in carrying out my duties – I do not interpret the law when they understand exactly the point I was making.
I apply the law as is. The court may choose not to apply the law as is when they are of the view that such law is unconstitutional. I do not have those powers. The courts, through interpretation, can make new law. I cannot. This is why sources of law include Case Law.
For instance, before March 2016, there was confusion about the powers of this office.
We all interpreted it our own way until the Constitutional Court made it clear for all of us. Now it is law that my remedies are binding. This is how courts make law through interpretation and this is exactly the point I was making.


As I said in my media statement earlier, I will be appealing this judgment. We are still working out whether to go the normal route or apply for direct access to the Constitutional Court.
That judgment is replete with a lot of eyebrow-raising conduct that cannot go unchallenged. We will deal with those extensively in court papers.
I wish to also address the matter of Minister of Rural Development and Land Reform, Hon. Gugile Nkwinti.


I investigated and finalised a report on allegations of a violation of  the Executive Ethics Code by Minister Nkwinti, which was lodged with my  office in February 2017.
This complaint was initially lodged by Thomas Waters of the DA. Soon thereafter we received a follow up complaint from Minister Nkwinti himself.
On 02 May 2019, the report was dispatched to Minister Nkwinti and Hon. Walters, the complainants, and President Cyril Ramaphosa, with the effective date being 03 May 2019.
My office received an acknowledgement of receipt of this report by the President shortly after 17H00 on 03 May 2019.


Later that afternoon the Minister approached the North Gauteng High Court, with a view to secure an interdict preventing me from releasing the report and also stopping the President from acting on the report.
In his court papers, Minister Nkwinti acknowledged receipt of the report, which was delivered to his office on 02 May 2019.


Simultaneously with the delivery of the report, the Minister was favoured with a copy of a letter (to which the above stated acknowledgment relates) addressed to the President enclosing the report.
The urgent application by the Minister, for the granting of the interdict, was arranged to be heard at an urgent court from 18H00 or soon thereafter as parties may be heard.
Despite the aforementioned factual exposition, the interim interdict was granted. As a result, I am precluded from publishing the report.


I must however here demystify the illusion that Mr. Nkwinti never was afforded an opportunity to respond to my section 7(9) notice.


In terms of Rule 24(2) (d) of the Rules Relating to Investigations by the Public Protector and Matters Incidental Thereto, 2018 (Gazette No. 41903), Minister Nkwinti had 10 days within which to respond to my section 7(9) notice.


I had, however, in terms of my section 7(9) notice, afforded the Minister effectively 18 days to respond, which was eight days more than what the Rules provide for
The Minister received my section 7(9) notice on 02 April 2019, with 20 April 2019 as the deadline for him to respond.


On 16 April 2019, some 14 days thereafter, the Minister requested an extension of the deadline owing to the party-political commitments relating to the elections.


Later on, the Minister sent another extension request citing too many forthcoming holidays as the basis.


Both these requests did not persuade me as sound reasons upon which the extension could be granted.


It was curious to me that it took the Minister 14 days to ask for an extension based on such reasons, more so when I considered I had afforded the Minister a period that far exceeds what is provided for in the Rules.


Again, as said above, I am constrained by the interdict to reveal my findings in the matter and this is as far as I can take this matter.
However, I must indicate that it is a concern to me to have a judgment of that nature. I will be appealing it as it could set a very bad precedent.


Let me now deal with the findings I am free to reveal to the public.


One relates to investigation into allegations of maladministration and impropriety in the approval of Mr Ivan Pillay's early retirement with full benefits and subsequent retension by SARS.


A thread on this and many other reports, issued today, will be published in this platform later this afternoon. Full reports will also be published on the public protector website.

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