Address by the Public Protector Adv.

Busisiwe Mkhwebane during a media briefing

held on Monday, June 15, 2020 in Pretoria.

Programme Director, Mr. Oupa Segalwe;

Deputy Public Protector, Adv. Kholeka Gcaleka;
Acting Chief Executive Officer, Ms. Yalekile Lusibane;
Executive Manager: Complaints and Stakeholder Management, Ms. Nthoriseng
Motsitsi;
Executive Manager: Provincial Investigation and Integration, Ms. Nelisiwe Thejane;
Acting Executive Manager: Administrative Justice and Service Delivery and Good
Governance and Integrity, Mr. Sibusiso Nyembe;
Acting Chief of Staff, Ms. Lethabo Mamabolo;
Members of the media;
Ladies and gentlemen.

Good afternoon!

Thank you for joining our virtual media briefing. As usual, I will reveal the outcomes of several
investigations that I, with the assistance of staff and the Deputy Public Protector, Adv.
Gcaleka, have concluded since the last briefing at the end of January 2020.

Not only do we use these quarterly briefings to reveal our investigation findings, we also use
the platform to educate communities about our mandate, role and services.

I will be revealing my findings in 35 investigations, including 13 matters which we decided to

close. These cover various themes including executive ethics, undue delay, abuse of power,
irregular staff appointments, procurement irregularities and dishonest or corrupt acts.

Not only is this our first briefing for the 2020/21 financial year, it is also the first since Adv.
Gcaleka assumed duty at the beginning of February 2020. Once again, let me, on behalf of
the Public Protector South Africa community, welcome you to the team, DPP.

We are delighted to have you and look forward to tapping into your vast experience, extensive
knowledge and training to help us in our quest to take the services of this institution to the
grassroots communities.

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Although you have been part of us for just over four months now, I’m sure you have been able
to feel the pulse of the institution and see for yourself the challenges that we face and the
opportunities that lie in wait for us to exploit. I am also certain that you see a different picture
now than you did when you were outside, looking in.

I am going to rely a lot on you to help me steer this ship. The Complaints and Stakeholder
Management (CSM) and the Administrative Justice and Service Delivery (AJSD) branches,
which are now under your supervision, as per your delegations, are the heartbeat of this
institution.

For the uninitiated, CSM is where all incoming complaints are registered and assessed for
jurisdiction and merit before a decision to either investigate or refer to other institutions is
taken. AJSD, on the other hand, is concerned with administrative justice and service delivery
complaints, including undue delays in the provision of public services.

AJSD accounts for the bulk of our investigation caseload, of which are mostly bread and butter
matters. It is in that branch that we are preoccupied with resolving complaints pertaining to
civil servant pensions, RDP housing, social grants, provision of water and electricity,
Unemployment Insurance Fund, Compensation Fund, public health care, public education and
access to land, among many other issues.

I have also allocated to you the mammoth task of presiding over all Alternative Dispute
Resolution sessions, through which a lot of the matters that come before us are resolved as
opposed to full blown investigations, which result in formal reports.

I have no doubt in my mind that you are equal to the task. You have our full support. We wish
you all of the best.

This briefing comes at a time where, as a country, we are battling the devastating Covid-19
pandemic, which has taken hundreds of lives in the country and hundreds of thousands across
the globe. Our hearts go out to those who have lost loved ones in these troubling times.

We also take our hats off to the frontline workers, under the shepherding of the Health Ministry
and the government at large, who have effectively put their own lives on the line to save ours.
Keep it up. Your selflessness has not gone unnoticed.

In a scramble to contribute towards national efforts to keep the rate of infections as low as
possible, we have also had to work differently in line with the National State of Disaster
regulations. We suspended walk-ins at all of our 19 offices across the country at the end of
March 2020 and worked remotely following the declaration of the lockdown.

However, as part of essential services, we carried on taking and processing complaints

electronically. From the middle of May 2020, we moved from working remotely to having a
skeleton staff of up to 33% physically in the office.

I wish to reiterate my call to all public servants to act responsibly during this time. The provision
for emergency procurement following the declaration of the national state of disaster does not,
in any way, suspend the Public Finance Management Act or the Municipal Finance

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Management Act. We do not wish to be inundated with unnecessary complaints about abuse
of state resources. We have received a few complaints of alleged tender irregularities and we
have appointed a senior team to deal with those matters.

The briefing also comes during Youth Month. I would therefore like to take this opportunity to
implore the young people of this country to be vigilant and hold government to the
undertakings it has made, especially those that are Covid-19 related. This includes the
provision of food parcels, the R350.00 grant and relief grants for Small Micro Medium
Enterprises. Hold your leaders to account. That is active citizenry.

However, I urge you to exhaust all available avenues before turning to the Public Protector
because we are a complaints body of last resort. We try not to do public servants’ work. They
are paid to perform that work. Only when they are failing to resolve your grievances will we
step-in.

This is why we have been on a drive to encourage organs of state to establish internal
complaints-handling units, which must serve as the first port of entry. We are also in the
process of developing an APP which will help with referrals and equip the public with
information on who to turn to first before escalating to us.

I further wish to record my disappointment that we seem to be losing the fight against gender-
based violence. Instances of the barbarism that is visited upon women by their male partners
time and again appear to be continuing unabated. It seems the relevant authorities are
struggling to deal with this scourge. As a woman and a mother to a girl child, I cannot keep
quiet. I call on the responsible authorities to protect us. We are dying.

I now turn to the business of the day; my findings on the various investigation that I have
already referred to.

CLOSING REPORTS

The following matters were closed on various grounds. In some instances, the allegations
levelled against the affected parties were simply unsubstantiated while in others, the issues
were dealt with in other forums and thus have been overtaken by events. They are:

 The investigation into allegations of abuse of power on the part of then Executive
Mayor of the City of Tshwane Metropolitan Municipality, Kgosientsho Ramokgopa, and
the erstwhile City Manager Jason Ngobeni with regards to the disciplinary process
followed against former Chief Financial Officer at the City, Mr. Andile Dyakala (Report
132 of 2019/20);

 The investigation into allegations of procedural irregularities and victimisation by the

City of Tshwane Metropolitan Municipality against Mr. Selby Bokaba (Report 142 of
2019/20). I found that the City of Tshwane acted within the legal prescripts;

 The investigation into allegations that the former Minister of Agriculture, Forestry and
Fisheries, Mr. Senzeni Zokwana misled and made misrepresentations to Parliament
when he replied in writing to a 25 June 2018 Parliamentary Question about the removal

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 of abalone from departmental stores without following proper procedures in violation
of the Executive Ethic Code and the Powers, Privileges and Immunities of Parliament
and Provincial Legislatures Act (Report 137 of 2019/20);

 The investigation into allegations that the Western Cape MEC for Health, Nomafrench
Mbombo received benefits/sponsorships on or around 6 September 2016 during
special birthday celebrations in their honour in violation of the Executive Ethics Code
(Report 143 of 2019/20). I concluded that the MEC did not receive any benefit, gift or
sponsorship as contemplated in the Executive Ethics Code for or in respect of the
function that was held at the Radisson Blue Hotel in Cape Town on 10 September
2016;

 The investigation into allegations of maladministration and improper conduct in

connection with a Master Service Agreement entered into between Eskom Holdings
SOC Limited and McKinsey Company Incorporated as well as payments made to
Trillian Capital and Partners (Pty) LTD (Report 139 of 2019/20). The matter has also
been referred to the Commission of Inquiry into State Capture. In addition, the High
Court has declared the decision to negotiate and conclude the “Master Service
Agreement” between Eskom and McKinsey as well as payments made by Eskom to
Trillian unlawful and invalid;

 The investigation into allegations of maladministration, irregular procurement

procedures and nepotism in the implementation of drought relief interventions by the
Free State Department of Rural Development and Land Reform (Report 151 of
2019/20);

 The investigation into allegations of failure by the Thembisile Hani Local Municipality
in Mpumalanga to seek approval from the Manala Mabhoko Traditional Council for the
construction of Phola Mall (Report 154 of 2019/20);

 The investigation into allegations of failure/ undue delay and maladministration by

various departments to properly investigate/and or attend to complaints and
subsequent appeals lodged by Mr A Langa on behalf of the Vaaltyn Community
against Ivanplats Resources (Pty) Ltd for the alleged unlawful mining (Report 104 of
2019/20).

 The investigation into allegations of irregular and unlawful transfer of Road Traffic
Inspectors from the employ of the Cross Border Road Transport Agency (CBRTA) to
the Road Traffic Management Corporation (RTMC) (Report 145 of 2019/20);

 The investigation into allegations of improper conduct, abuse of power and/or

maladministration during the investigation of Mr MJ Makwakwa’s financial affairs by
the Financial Intelligence Centre and the South African Revenue Services (Report 107
of 2019/20);

 The investigation into allegations that there was no proper process followed in respect
of an application for an Environmental Authorization Certificate issued in respect of the
proposed construction of the Johannesburg East Electricity Supply Strengthening
Project, in the Mpumalanga and Gauteng provinces (Report 126 of 2019/20);

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  The investigation into allegations of maladministration, tender irregularities as well as
fruitless and wasteful expenditure with regards to the procurement of a service provider
to design and develop an integrated website for the Free State Provincial Government
(Report 128 of 2019/20); and

 The investigation into allegations of maladministration, corruption and entrenchment

of monopolies in the 25-year-long contract between Transnet and Anglo subsidiary,
Kumba (Pty) Ltd. The contract was allegedly signed by Ms. Maria Ramos in 2005
(Report 124 of 2019/20). All the allegations contained in the complaint were
unsubstantiated, hence the closure. Although the allegations were not substantiated
and there was accordingly no remedial action taken in this matter, I hope that Transnet
ensures that their long-term strategic supplier relationship objectives with Emerging
Miners and BEE miners are in line with socio-economic transformation objectives, with
a view to ensuring that these miners are accommodated by Transnet for the
transformation of the sector and for the benefit of all South Africans. This is especially
with regard to the need to ensure that the rail infrastructure is principally used for the
benefit of the populace.

I now move on to the rest of the matters.

UNFAIR/IMPROPER CONDUCT

Masiga vs Department of Justice and Correctional Services (Report no 150 of 2019/20)

I investigated allegations of maladministration against the Department of Justice and

Correctional Services for failing to properly process a child maintenance application. The
complaint was lodged on behalf of a minor girl child by Ms. Refiloe Masiga in April 2017. She
alleged that the department circumvented a prescribed mandatory procedure when
processing an application for child maintenance at the Ganyesa Children’s Court offices in the
North West.

I focused my investigation on two issues. First, whether the department improperly failed to
ensure that proper prescribed procedures were followed when processing the child
maintenance application for the period 2009 to 2016. I found this allegation to have been
substantiated. The second issues was whether the complainant and/or her minor were
improperly prejudiced by the department’s conduct in the circumstances. I found that this
issue, too, is substantiated.

To remedy this improper conduct and maladministration, I directed the Acting Director-General
(DG) of the Department of Justice and Correctional Services to, within 30 days from the date
of this report, ensure that disciplinary action is taken against all officials who were responsible
for exposing the department to acts of maladministration/improper conduct in violation of the
Maintenance Act by failing to process the Complainant’s maintenance claim and the ensuing
arrears.

Within 30 days from the date of this report, the Acting DG must ensure that the officials
involved in the maintenance processes are properly familiarised with the provisions of the

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Maintenance Act with particular reference to speedy processing of maintenance applications
to avoid maladministration/improper conduct. Also within 30 days of receipt of the report, the
Acting DG must pay the complainant the R 23 015.84 as ex-gratia payment as per the
department’s offer. This amounts to a period of over 34 months as per the offer made to the
complainant.

In addition, and also within 30 working days from the date of this report, the Acting DG must
write letter of apology to the complainant for the prejudice caused. The Minister of the
Department of Justice and Correctional Services must ensure that the Acting DG complies
with this remedial action. This, too, must happen within 30 working days from the date of this
report.

Ntsane vs Master of the High Court of South Africa (Report 122 of 2019/20)

I investigated allegations of failure by the Chief Master to deal with the conduct of attorney,
Mr. Mkhavele, who administered the estate of the later Mr. Tsoeu Ezekiel Ntsane and the
unfairness of regulation 910 of the Attorneys, Notaries and Conveyancers Admission Act 23
of 1934 which regulates the administration of the deceased estate. The investigation came
about as a result of a complaint by Ms. L. Ntsane, the widow of Mr. Ntsane. It was lodged with
my office on 26 March 2018.

After analysing the complaint, I decided to investigate whether the Master of the High Court
failed to address the unfairness of Regulation 910 of the Attorneys Act, thereby prejudicing
the complainant and whether there was any undue delay on the part of the Master to render
assistance to Ms. Ntsane to finalise the winding up of the estate of her late husband.

I found that indeed the Master failed to address the unfairness of Regulation 910 of the
Attorneys Act, thereby prejudicing the complainant. However, there was no undue delay on
the part of the Master to render assistance to Ms. Ntsane to finalise the winding up of the
estate of her late husband. Therefore the allegation is unsubstantiated.

In the circumstance, the remedial action I take is that the Minister of Justice and Constitutional
Development must, within 60 working days from the date of this report, initiate a process of
reviewing Regulation 910 in its totality.

The Minister must also, inter alia, consider allowing the Master to work within the ambit of the
Administration of Estate Act on the appointment processes and role of an Executor and how
the office of the Master can be of assistance to Executors in the Administration of the Estate.

The Acting Chief Master (ACM) is directed to, within 30 working days from the date of the
report, develop a process manual that explains the role and responsibilities of the Executors
upon receipts of Letters of Executorship.

The ACM must, within 30 working days from the date of this report, write a letter to the Legal
Practice Council (LPC) to follow up on the action the LPC will take in dealing with the conduct
of the attorney for withdrawing R49 000.00 from the estate bank account and for charging the
complainant R3000.00 for the issuing of a letter of executorship.

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The Master must, within 30 working days from the date of this report, re-appoint the
complainant as the Executrix of the estate and also arrange a meeting of all interested parties
in order to finalise the winding up of the estate.

De Jongh vs Department of Telecommunications and Postal Services (Report 100 of

2019/20)

I investigated allegations of unfair conduct by the Department of Telecommunications and

Postal Services in deciding to contribute a maximum medical aid subsidy and not two-thirds
government contribution towards the medical aid subsidy of Mr. Dirk de Jongh and 13 others
former employees of the erstwhile Department of Post, Telecommunications and
Broadcasting.

Mr. De Jongh alleged that he and 13 others were employed by the Department of Post and
Telecommunications, and that they voluntarily terminated their services and took severance
packages between 1996 and 1997 to assist the government to achieve its objective under the
Right-Sizing of the Public Service” programme.

He alleged that when they exited Post and Telecommunications, they were, in terms of the
conditions of their severance packages, entitled to a post termination monthly medical aid
subsidy to the value of two-thirds of their monthly membership fees, without any cap being
placed on the maximum amount. In addition, Mr. De Jongh alleged that between May and
June 2012, the employer’s medical aid contributions to their medical aid funds were stopped,
resulting in the suspension of their membership.

When the subsidy resumed and their membership was restored, the employer’s medical aid
contribution was, in their view, unlawfully and improperly capped to a maximum of R1014.00
per month instead of two-thirds of the membership fees, he alleged.

My investigation focused on two issues. First, I looked into whether the department unfairly or
improperly resolved to alter the conditions pertaining to medical scheme assistance to Mr. De
Jongh and others. This allegation is substantiated. The second was whether the conduct of
the department caused him and others suffered any prejudice. This issue, too, is
substantiated.

In terms of remedial action, I directed the DG of the department to, as a matter of urgency,
take the necessary steps within 60 working days from the date of receiving this report to
address the adverse financial impact of its ill-fated decision to cap its contribution to the
medical aid scheme of Mr. De Jongh and his colleagues. The DG must do so by overseeing
and implementing a proper process to reconcile and to calculate the difference in the actual
medical aid subsidy paid to the complaint and others and the amount which two-thirds medical
aid subsidy should have been for each of the affected parties to establish the shortfall.

The DG must reimburse the affected parties of any of their own contributions towards their
medical aid scheme since 01 December 1993, which thus exceeded one third of the total
medical aid membership fees paid towards their medical aid schemes. The amount of shortfall
must include the amount of interest at the prescribed rate of interest in terms of the Prescribed
Rate of Interest Act for the periods the different interest rates in terms of the act applies.

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UNDUE DELAY

Gielink vs Ilembe District Municipality (Report 134 of 2019/20)

I investigated allegations of improper conduct and maladministration by the Ilembe District

Municipality in KwaZulu-Natal, relating to refunds for water purchases. The investigation was
triggered by a complaint from Ms. Janet Gielink.

After analysing the complaint, I considered two issues for investigation, namely whether the
municipality delayed to refund the complainant for water credits and vouchers that she
purchased when the prepaid water meters installed at her residence malfunctioned on 08
December 2016 and 18 January 2018 and, if so, whether the undue delay by the municipality
was improper, constituted maladministration and prejudiced the complainant.

I found both allegations to be substantiated and, by way of remedial action, directed the
Municipal Manager to furnish the complainant with a written apology for the undue delay in
refunding her for the water credits and vouchers within 30 days of receipt of my report.

The Municipal Manager must further, within 60 days of receipt of this report, take urgent steps
to establish an accessible and effective mechanism to address and remedy complaints
pertaining to such refunds as in the case of Ms. Gielink, monitor response time and efficiency
of this mechanism, report to the council on the establishment of the mechanism and the results
of the monitoring of its response time and efficiency within 90 days of receipt of this report.

Pietersen and others vs South African National Defence Force and others (Report 123
of 2019/20)

I investigated allegations of undue delay, maladministration and improper conduct by the

South African National Defence Force (SANDF), the South African Police Service (SAPS) and
the Compensation Fund with regard to an investigation into the death of Lieutenant Daniel
Pietersen and the reporting, processing and payment of Compensation Fund benefits.

The complaint was lodged by the deceased’s mother, Ms. P. Pietersen, who alleged that
Lieutenant Pietersen, a member of the SANDF, collapsed while participating in an exercise
marathon on 03 February 1998 and was rushed to a hospital in George, Western Cape, where
he died the following day as a result of a heatstroke. He had been comatose at the time of his
passing.

She also alleged that the SAPS in Oudtshoorn investigated her son’s death and promised to
keep her abreast of progress but failed to do so. Ms. Pietersen further alleged that the SANDF
held a Military Board of Inquiry into her son’s death and never informed her of the outcome.

In addition to these, Ms. Pietersen alleged that the SANDF failed to timeously report her claim
for payment of compensation benefits to the Compensation Fund and that the Fund also failed
to attend to the claim and unduly delayed the processing thereof and the payment of benefits
to her.

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I decided to investigate five issues. First, whether the SAPS unduly delayed to investigate the
death of the deceased and failed to keep the complainant up to date with progress in the
inquest investigation. In the absence of substantive evidence, I could not make a
determination on the alleged undue delay but I did find that the SAPS failed to keep the
complainant informed about progress in the investigation.

Second, I investigated whether the SANDF unduly delayed the finalization of the Military Board
of Inquiry in the deceased’s death and failed to communicate the findings to the complainant.
This undue delay allegation is not substantiated. However the SANDF did fail to inform the
complainant about the inquiry findings.

Third, I investigated whether the SANDF failed to timeously report the claim to the
Compensation Fund and to submit comprehensive documents for the Fund for the processing
and payment of compensation benefits to the complainant and found the allegation to be
substantiated.

Fourth, whether the Fund unduly delayed to process the claim for compensation benefits and,
fifth, whether the complainant was unfairly prejudiced by the conduct the SANDF, SAPS and
the Fund. These allegations, too, are substantiated. Ms. Pietersen suffered improper
prejudice.

To remedy this improper conduct and maladministration, I direct the National Commissioner
of SAPS to consider amending the Standing Orders to provide for informing the next of kin of
progress made in an inquest investigation and apologise in writing to Ms. Pietersen for the
failure to keep her informed of progress in the inquest investigation within 30 days of the date
of this report.

The Chief of the SANDF is also directed to issue a written apology to Ms. Pietersen within 30
working days of this report for the failure to inform her of the outcome of the Board of Inquiry
into her son’s death.

Lastly, the Compensation Commissioner must apologise in writing to Ms. Pietersen for the
delay to process and pay compensation benefits to her within a reasonable time. This must
be done within 30 days of this report.

ABUSE OF POWER

Nkopelang v Rustenburg Local Municipality (Report 136 of 2019/20)

I investigated allegations that law enforcement officials at the Rustenburg Local Municipality
in the North West unlawfully removed telephone containers belonging to Mr. Patrick
Nkopelang from the main taxi rank in the mining town during a midnight raid on the facility in
May 2010.

According to Mr. Nkopelang, all four containers, which allegedly housed a total of 13 prepaid
telephone sets that him and his wife used to run a public phone business from the facility,
were damaged beyond repair during their removal from the premises.

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Mr. Nkopelang also alleged that he lost several other items of value during the operation,
including gas lights, batteries, remote controllers, telephone cable wires and R200 in cash. He
added that he suffered damages to the tune of more than R260 000, being the total cost for
the containers as well as the value of the other items lost during the raid. He did not have a
permit to run the business.

My investigation focused on two issues. The first was whether the actions of the municipality
in removing the containers were unlawful, which allegations I found to be substantiated. The
second issue was whether Mr. Nkopelang suffered any prejudice as a result of the
municipality’s conduct. This too is substantiated.

To remedy this improper conduct and maladministration, I directed the Municipal Manager to
apologise in writing to the complainant, submit this report to Council for consideration and
return the four containers to the complainant in the same condition they were in at the time of
removal.

Alternatively, the Municipal Manager must obtain three quotations in respect of the damaged
containers and compensate Mr. Nkopelang in line with the least expensive of the quotations.
All these must be done within 30 days of the date of the report.

Mhlahla vs Gauteng Department of Housing and Human Settlements (Report 121 of

2019/20)

I investigated allegations of an unlawful demolition of a house belonging Mr. AF Mhlahla by

the Gauteng Department of Housing and Human Settlements. The house was allegedly razed
to the ground on 05 December 2017 by the Red Ants, who were contracted by the department.

Mr. Mhlahla, a 45-year-old married man, alleged that he built the house at his own expense in
Extension 18, Atteridgeville, west of Pretoria, on a stand allocated to him by the City of
Tshwane Metropolitan Municipality.

I looked into whether the department unlawfully demolished Mr. Mhlahla’s house and whether
he suffered any improper prejudice as a result of the department’s conduct. My investigation
revealed that both these allegations are substantiated.

To remedy this improper conduct and maladministration, the department will rebuild Mr.
Mhlahla’s house. He has agreed to this. The parties agreed that the settlement agreement
constitutes my findings and remedial action.

Mothusi vs Ngaka Modiri Molema District Municipality (Report 135 of 2019/20)

I investigated a complaint of alleged refusal and undue delay by the Ngaka Modiri Molema
District in the North West to pay a company called Health and Hygiene Services (Pty) Ltd
about R132 624. 00 and R159 750.00 for services rendered and for the use of the company’s
equipment, respectively.

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In essence, the complainant alleged that in August 2012 her company was awarded a three-
year contract to render hygiene services, which included the supply of air fresheners, hand
sanitizers, toilet seat sanitizer, urinal and water closet sanitizer etc.

In May 2013, the company allegedly received a letter from the Municipal Manager, advising
the company to temporarily cease rendering services. However, later that month, a meeting
was held between the complainant and the municipality’s Supply Chain Manager and it was
allegedly agreed that the company should commence with rendering services.

Pursuant to the agreement with the Supply Chain Manager, the company allegedly rendered
services until January 2014. It allegedly ceased rendering services because the municipality
had failed to pay for services since May 2013 as it could no longer afford to render more
services without payment. However, its equipment allegedly remained in use within the
premises of the municipality as the contract had not been terminated.

In my investigation, I focused on whether the municipality improperly failed to pay the company
for services rendered between May 2013 and January 2014 as well as for the continued use
of the hygiene equipment belonging to the company from February 2014 until July 2015. This
allegation is substantiated. I also investigated whether the action by the municipality caused
the complainant to suffer any prejudice. This allegation is also substantiated.

To remedy this maladministration and improper conduct, I direct the Municipal Manager to
ensure that this report is tabled before council within 90 days. The Municipal Manager must
also write a letter of apology to the complainant for the prejudice caused, within 90 days of the
date of this report.

Lastly, the Municipal Manager must ensure that the company is paid within 90 working days
of the date of this report an amount of R237 450.00 for services rendered from May 2013 until
January 2014 as well as for the continued use of the company’s hygiene equipment from
February 2014 until July 2015.

Sentsho vs North West Department of Health (Report 131 of 2019/20)

I investigated allegations of failure by the North West Department of Health to process an

appeal lodged by Mr Benjamin Sentsho, following the outcome of a disciplinary process
instituted against him.

In the main, the complainant alleged that in April 2012, the department subjected him to a
disciplinary hearing on charges of fraud and corruption. In December 2012, he was given the
outcome of the disciplinary process, in which the presiding officer found him guilty and
recommended a sanction of dismissal.

He lodged an appeal with the MEC, who, at the time, was Dr Magome Masike. The department
allegedly failed to process his appeal and when he enquired, it was indicated to him that his
contract of employment had expired on 31 January 2013 before the appeal could be
processed.

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The department allegedly indicated further that since the complainant was no longer its
employee, it was no longer necessary to process his appeal.

Upon analysing the complaint, I decided to investigate whether the department improperly
failed to process the appeal lodged by the complainant and whether the complainant was
prejudiced by the conduct of the department. I found that both allegations are substantiated.

To remedy this maladministration and improper conduct, I direct the MEC to objectively
process Mr Sentsho’s appeal and provide him with the outcome of his application. This must
happen within 30 working days from the date of this report. The MEC must also, within 30
working days from the date of this report, provide my office with a copy of the outcome of the
appeal.

The Head of Department must, within 30 working days of the date of this report, take
disciplinary steps against the officials who allowed Mr Sentsho to continue working without a
formal contract of employment within the period 1 February 2012 until 31 January 2013.

IRREGULAR STAFF APPOINTMENTS/ HUMAN RESOURCES MATTERS

Anonymous vs Dr. Kenneth Kaunda District Municipality (Report 152 of 2019/2020)

I investigated an anonymous complaint in which it was alleged that the Dr. Kenneth Kaunda
District Municipality in the North West shortlisted and appointed a certain Mr Ezekiel Motsumi
Kgang to the position of the District Sports, Recreation, Arts, Culture & Heritage Coordinator
even though he did not meet the minimum requirements for the position.

Upon a thorough analysis of the complaint, I resolved to investigate whether the municipality
irregularly appointed Mr Kgang to the position in question and whether the complainant and/or
other candidates suffered prejudice as a result of the alleged irregular appointment. I found
both allegations to be substantiated.

The municipality incurred fruitless and wasteful expenditure by conducting a recruitment

process which was irregular and in contravention of the provisions of section 62(1) (d) of the
MFMA.

To remedy this irregular appointment, improper conduct and maladministration, the Speaker
must, within 90 working days, ensure that the Municipal Council in consultation with the
Municipal Manager declare the appointment of Mr. Kgang irregular. The salary of Mr. Kgang
should reflect as an irregular expenditure in the Municipality’s financial statement for the period
01 April to date.

The Municipal Manager should within 90 working days take disciplinary steps against all
officials who caused the irregular appointment of Mr. Kgang, recall Mr. Kgang from the position
as undertaken in the response to the S7(9) notice and approach the court to review the
irregular appointment.

Modise vs Lekwa-Teemane Local Municipality (Report 149 of 2019/20)

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I investigated allegations that the Lekwa-Teemane Local Municipality in the North
West irregularly appointed a Municipal Manager, Mr. Ndoda Mgengo.

Upon thoroughly studying the complaint, I decided to investigate the following four issues.
First, I investigated whether the conduct of the municipality in allowing Mr Mgengo to
participate in the recruitment process and his final appointment as Municipal Manager caused
a conflict of interest for him and amounted to maladministration. This allegation is not
substantiated.

Second, I investigated whether the municipality irregularly appointed Mr. Mgengo even though
he lacked the required skills, experience, competencies and qualifications for the position of
Municipal Manager in 2015 and 2018 respectively. Only the allegation about his 2015
appointment is substantiated.

Third, I looked into whether the municipality properly paid a 20% “market premium allowance”
to him after his appointment as Municipal Manager and whether such a payment amounts to
irregular expenditure. This allegation is substantiated.

Lastly, I investigated whether the municipality unduly failed to comply with processes as
required by the relevant section of the Municipal Systems Amendment Act with regard to the
appointment of Mr. Mgengo in 2015. This allegation is not substantiated.

As part of the remedial action, I direct the Mayor to take the necessary steps to determine the
amount of money paid to Mr. Mgengo as a “market premium allowance“ for the 2015
appointment and, within 30 days of this report, compile a report with recommendations for the
attention of the Council.

The Mayor must also ensure that the report is tabled before the Council in the first meeting to
be held subsequent to the determination of the amount and the report to allow the Council to
consider and deliberate on the report with a view to resolving what should happen with the
report.

In addition to this, the Council is to ensure that the decision taken following the deliberations
is communicated to the MEC within 15 days of the decision.

Sebe vs Frances Baard District Municipality (Report 133 of 2019/20)

I investigated allegations of improper conduct and maladministration by the Frances Baard

District Municipality in the Northern Cape Province relating to the appointment of a
Development Planner.

In a complaint lodged with my office in April 2017, Mr. Neo Sebe in his capacity as a
representative of the South African Municipal Workers Union (SAMWU), alleged that the
appointment of Ms. O Gopane as Development Planner in March 2017 was irregular as she
did not qualify for the position and the interview panel did not recommended her for
appointment.

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Based on the complaint, I investigated whether the appointment of Ms. Gopane was in
accordance with the relevant laws and prescripts regulating the recruitment and selection of
staff at the municipality and, if not, whether the conduct of the municipality was improper and
constituted maladministration. I found both allegations to be substantiated.

To remedy these acts of improper conduct and maladministration, I directed the Executive
Mayor to take appropriate steps in respect of disciplinary action against the Municipal
Manager, Ms. Mamikie Bogatsu for the irregular appointment.

The Mayor must also conduct an analysis and evaluation of Ms. Gopane’s qualifications,
experience and competence against the requirements and job description of the positon she
occupies, submit a report to the Municipal Council and take appropriate steps to institute
proceedings for the judicial review of Ms. Gopane’s appointment. All of these must take place
within 30 business days from the date of this report.

In addition, the Council must consider the report of the Executive Mayor referred to above and
take a resolution on the matter. This must take place within 60 business days from the date of
my report.

Kubheka vs Victor Khanye Local Municipality (Report 113 of 2019/20)

I investigated allegations of maladministration and irregular appointment of a certain Mr. NE

Masango as Assistant Manager: Youth Development by the Victor Khanye Local Municipality
in Mpumalanga. This followed a May 2016 complaint by Ms. CN Kubheka, who was one of
the candidates for the position.

She alleged that the vacancy was advertised and that one of the requirements was a degree;
the municipality appointed Mr. Masango who did not have a degree and council directed the
municipality to investigate the qualifications of Mr. Masango and the process followed in his
appointment after a public outcry.

It also came to my attention during the investigation that Ms. Kubheka has since been
appointed to the position she was aggrieved about after Mr. Masango was transferred to the
position of Assistant Manager: Local Economic Development, which I have decided to include
in my investigation.

My investigation focused on four issues. First, whether the municipality irregularly appointed
Mr. Masango who did not meet the minimum requirements for the position of Assistant
Manager: Youth Development. This allegation was substantiated. Second, I investigated
whether the complainant and the ratepayers suffered prejudice as a result of the municipality’s
conduct. This is unsubstantiated.

Third, I investigated whether the transfer of Mr. Masango to the positon of Assistant Manager:
Local Economic Development complied with recruitment processes and legal prescripts. I
found that it complied.

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Lastly, I looked into whether subsequent to Ms. Kubheka’s appointment to the position of
Assistant Manager: Youth Development after it was re-advertised, recruitment processes and
legal prescripts were complied with. I found nothing wrong with her appointment.

As part of remedial action, the Speaker of the Council, Cllr. R. K. Segone must within 30
working days of this report ensure that the council in consultation with the Municipal Manager
declare the appointment of Mr. Masango to the position of Assistant Manager: Youth
Development irregular, the salary of Mr. Masango reflects as irregular expenditure in the
municipality’s financial statements for the period 04 May 2015 to 01 August 2018 when he
was transferred to the positon of Assistant Manager: Local Economic Development.

The Speaker must within 60 days of this report, disclose all the irregular expenditure incurred
by the municipality in connection with the irregular appointment of Mr. Masango to the
Provincial Treasury and to the Auditor-General.

The Municipal Manager, Ms. ST Matladi, on the other hand, must within 60 working days of
this report, institute an investigation into the irregular appointment of Mr. Masango as well as
the incurrence of irregular expenditure in relation to the payment of salaries to Mr. Masango
whilst occupying his former position.

Ms. Matladi must within 30 days of the investigation referred to above, take disciplinary action
against all the officials who caused the irregular appointment of Mr. Masango. She must within
60 days of the report conduct or provide training on recruitment and selection and the
importance of complying with approved policies.

Anonymous vs the Northern Cape Economic Development, Trade and Investment

Promotion Agency (Report 144 of 2019/20)

I investigation allegations of improper conduct and maladministration by the Northern Cape

Economic Development, Trade and Investment Promotion Agency (NCEDA) relating to the
appointment of a Human Resources Manager, Mr. T Luse, in 2012. The complaint which gave
rise to the investigation was lodged anonymously.

Upon an analysis of the complaint, I decided to investigate whether the appointment of Mr.
Luse was in accordance with the relevant laws and prescripts regulating the NCEDA’s
recruitment and selection of staff and, if not, whether the conduct of the NCEDA was improper
and constituted maladministration. I found both allegations to be substantiated.

For the purposes of remedial action, I directed the MEC for Finance, Economic Development
and Tourism to take appropriate action against the current Chief Executive Officer and the
former Chairperson of the NCEDA Board for the irregular appointment of Mr. Luse.

In addition, the NCEDA Board must institute proceedings for the judicial review of the irregular
appointment of Mr. Luse. Both these actions must take place within 60 working days of the
date of my report.

Anonymous v CRL Commission

15
I investigated allegations of irregular appointment of the Chief Financial Officer (CFO) of the
Commission for the Promotion and Protection of the Rights of Cultural, Religious and
Linguistic Communities, Mr. Cornelius Machiel Smuts in 2007. The investigation was
prompted by a complaint lodged anonymously with my office in October 2016.

The complainant alleged, among other things, that the CRL Commission recruited Mr. Smuts
in 2007 as a CFO while he was not qualified for the position; that Mr Smuts did not have the
required academic qualifications for the positon of CFO as advertised by the CRL Commission
at the time; and that he did not have the required experience in terms of the CFO post
advertisement and that he continued to show a high level of incompetence in the positon by
abusing subordinates, who were more experienced and qualified than him.

I decided to investigate whether the CRL Commission irregularly appointed Mr. Smuts as the
CFO when he was not suitably qualified for the position and whether the CRL Commission
suffered prejudice as a result of the irregular appointment of Mr. Smuts in the circumstances.
I found that both these allegations were substantiated.

To remedy this maladministration and improper conduct, the CEO of the CRL Commission
must initiate a judicial review process to remedy and regularise the appointment of Mr. Smuts
and disclose all irregular expenditure to the National Treasury incurred in connection with the
irregular appointment of Mr. Smuts. All these must happen within 60 working days.

Anonymous vs South African Broadcasting Corporation (Report 140 of 2019/20)

I investigated allegations of maladministration and impropriety in relation to the appointment

of Ms. Palesa Chubisi to the position of Producer/Presenter of popular news and eventuality
programme, Morning Live, at the South African Broadcasting Corporation (SABC). An
anonymous complainant lodged the complaint with my office on 02 June 2017.

In the main, the complainant alleged that the SABC appointed Ms. Chubisi to the position
permanently in April 2016 without following and adhering to the recruitment procedures and
prescripts that were applicable at the time. Ms. Chubisi was allegedly preferred ahead of other
candidates who were suitably qualified and experienced.

My investigation focused on whether SABC functionaries appointed Ms. Chubisi to the position
in question without following and adhering to applicable recruitment procedures and prescripts
and, if so, whether that conduct was improper and amounted to maladministration. I found
both these allegations to be substantiated.

To remedy this improper conduct and maladministration, I direct the Group Chief Executive
Officer (GCEO) of the SABC to take steps within 30 days of receipt of this report, in line with
the SABC recruitment processes and applicable prescripts to confirm the appointment of Ms.
Chubisi to the position of Producer/Presenter for SABC TV or place her in a position
commensurate with her level within the SABC or migrate her to the position of
Producer/Presenter that she previously held at Lesedi FM, or take any other steps provided
for in the Labour Relations Act.

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The GCEO must ensure that any irregular, fruitless and/or wasteful expenditure incurred by
the SABC as a result of the improper conduct by any person is dealt with in accordance with
the process stipulated in the National treasury updated guidelines on irregular expenditure. In
addition, the GCEO must take steps within 60 days of receiving the report to train, workshop
and/or educate employees in adherence and compliance with the SABC policies and
prescripts including the values and principles stipulated in section 195 of the Constitution.

PROCUREMENT IRREGULARITIES

Maleho vs Constitution Hill (Report 146 of 2019/2020)

I investigated allegations of irregular award of a tender for cleaning services by the

Constitution Hill in Gauteng to a company called Rabbi Solutions (PTY) Ltd. The investigation
stemmed from a November 2017 complaint by Mr. Ndo Maleho.

In his complaint, Mr. Maleho alleged that Rabbi Solutions was awarded a tender for cleaning
services due to the owner, Ms Kedibone Dorothy Senne’s close relationship with the
Constitution Hill’s Facilities and Operations Manager, Mr Themba Ntuli.

He alleged that Rabbi Solutions was four-months-old when it was awarded the tender in
August 2016 and thus did not have the requisite experience. The tender was advertised in
June 2016 and Rabbi Solutions submitted tender documents in July 2016. According to Mr,
Maleho, the documents were completed and compiled with the assistance of Mr. Ntuli.

I decided to investigate whether the Constitution Hill irregularly or improperly awarded the
tender to Rabbi Solutions even though the company lacked the requisite experience and
whether Mr Ntuli is personally aligned or linked to Rabbi Solutions or Ms Senne and if so,
whether this amounts to a conflict of interests. I further looked into whether Mr. Maleho or any
other person suffered improper prejudice in the circumstances.

I found that the allegation that the Constitution Hill irregularly or improperly awarded the tender
in question to Rabbi Solutions even though the company concerned lacked the requisite
experience was not substantiated as no tender was ever awarded. However, it appears from
the evidence, that Rabbi Solutions was irregularly and improperly appointed for the job.

The allegation that Mr Ntuli is personally aligned or linked to Rabbi or Ms Senne and if so,
whether this amounts to a conflict of interest, is substantiated. The allegation whether the
Complainant or any other person suffered prejudice in the circumstances is substantiated.

To remedy this improper conduct and maladministration, the Chief Executive Officer (CEO) of
the Constitutional Hill is directed to ensure that all members of the BEC involved in the
appointment of Rabbi Solutions should be subjected to an internal investigation and
disciplinary steps must be taken against them for their improper conduct relating to the
violation of procurement policies.

The CEO must further ensure that within ninety working days of the date of this report, all
officials involved in procurement processes, should attend a workshop on the Public Finance

17
Management Act and the Constitution Hill SCM Policy as well as the code of conduct SCM
practitioners and Public Service Regulations governing procurement.

Sibambato vs Transport Education Training Authority (Report 129 of 2019/20)

I investigated allegations of maladministration, abuse of power and tender irregularities by the

Transport Education Training Authority (TETA) contained in a May 2011 complaint by a certain
Ms SG Sibambato, a former Corporate Services Manager at the institution, who had been in
its employ since April 2009.

Although the matter was largely about procurement issues, it also had aspects pertaining to
staff appointments. Ms. Sibambato made the following specific allegations:

a) TETA irregularly awarded Nkwame Mahuma Consulting a contract for the provision of
Corporate Governance Compliance Services without following Treasury Regulations
and TETA’s SCM processes and procedures;

b) TETA irregularly procured Deloitte to conduct Information Technology (IT)

infrastructure technical assessment for the design of IT projects despite advice from
the complainant, who was the Bid Adjudication Committee (BAC) Chairperson, the
Treasury Department and the TETA’s Consultant Phakamole;

c) Furthermore, the TETA’s Chief Executive Officer (CEO), Ms Maphefo Anno-

Frempong, previously known as Ms Matlala, misrepresented the facts during TETA’s
board meeting held on 31 March 2010, stating that the procurement process and
subsequent awarding of a contract to Deloitte were properly done;

d) An employee of Deloitte, Mr Thokozani Kubheka, was appointed as a consultant Chief

Financial Officer (CFO) at TETA. He procured the services of Deloitte Property Division
for rectification of the TETA’s utility account and further provided advice on a building
donated by Transnet, which is situated at Oxford Road, without following Supply Chain
Management (SCM) processes, Public Finance Management Act (PFMA) and
Treasury Regulations;

e) The CEO interfered and expressed an interest in the procurement of Human

Resources Integrated Systems from a company called S-Cube, which was
recommended by a consultant from another company called 21st Century, despite
procurement processes having already been effected. The consultant confronted the
complainant in the presence of the Chief Operating Officer (COO) and she was
questioned on reason/s for her not inviting the company that was recommended by the
CEO;

f) TETA had a contract with Mondial IT Solutions Company and continued to utilize the
service of Mr Johan Smook as an IT Consultant even after he had resigned from
Mondial IT Solutions Company;

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 g) TETA further appointed Mr Rob Mudau, a Labour Consultant, to chair a disciplinary
enquiry of Ms T Coldwell, a Manager employed in the Durban office, without following
TETA’s SCM Policy;

h) The CEO interfered and expressed interest in the recruitment and selection of the
following staff members: Mr Obakeng Mmono, the PA to the CEO; Mr P Batlang, the
former Corporate Services Manager; Mr Mogomotsi Kgantsi, the Chief Operations
Officer (the COO), Mr L Dladla, the Executive Officer, Freight Handling in the Durban
Office; and Mr ME Maluleke, the Procurement Officer;

i) The complainant was dismissed on framed charges in that she was alleged to have
interfered with the job specifications of the position of the Procurement Officer during
the recruitment for this post; and

j) The complainant was dismissed on framed charges for reporting the conduct of the
CEO to the Minister of Higher Education

My investigation revealed that, except for claims concerning the procurement of the services
of Deloitte Property Division, CEO’s interference and expression of an interest in the
procurement of Human Resources Integrated Systems, the utilisation of the service of Mr
Smook; the recruitment and selection of Mr Batlang, Mr. Mmono, Mr. Kgantsi, Mr. Dladla, Mr.
Maluleke; and the complainant’s dismissal, the rest of the other allegations were
substantiated.

As part of remedial action, I directed the Minister of Higher Education to take cognisance of
the improper conduct and findings of maladministration against the TETA board and senior
officials, ensure that appropriate disciplinary action is taken in terms of section 84 of the PFMA
against the remaining board members and ensure that the implementation of the remedial
takes place.

The Chairperson of the TETA Board must ensure that within three months of date of this
report, an evaluation into the effectiveness of all Procurement and Human Resource policies
is effected to determine systemic deficiencies.

The Chairperson must also ensure that all relevant staff is trained on the TETA’s procurement
policies and legislative prescripts governing procurement in the public sector to prevent
recurrences of transgressions identified in this report.

Gardee vs Department of Water and Sanitation (Report 119 of 2019/20)

I investigated allegations of corruption, procurement irregularities and maladministration within

the erstwhile Department of Water and Sanitation. The investigation followed a February 2017
complaint by Mr. Godrich Gardee, then Member of Parliament and General Secretary of the
Economic Freedom Fighters (EFF).

Mr. Gardee alleged that an anonymous letter was submitted to the EFF in connection with
alleged corruption and procurement irregularities within the department whereby several

19
allegations were made in relation to the purchasing of the System Application and Product
(SAP) licenses.

According to him, it was alleged that the SAP licenses were purchased for both the department
and Water Boards, the department had existing licenses that could accommodate additional
users but proceeded to procure new ones, and the licenses for the Water Boards were procure
on their behalf without their consent or needs analysis being conducted.

It was further alleged that Mr. Luvo Makasi, an employee of the department, had been
influential in facilitating the deal, claiming to represent the interests of the former Minister, Ms.
Nomvula Mokonyane, by giving direct instructions to senior officials within the department.

I focused my investigation on whether the department irregularly procured the SAP licenses
for itself and on behalf of the Water Boards and, if so, whether such conduct led to the
department incurring irregular and/or fruitless and wasteful expenditure, maladministration
and improper conduct.

I found that the allegation that the department irregularly procured the SAP licenses for itself
and on behalf of the Water Boards is substantiated. I also found that the conduct of officials,
Mr. Mkhize and Ms. Mathe, amounts to maladministration and improper conduct while the
expenditure incurred as a result of the irregular extension was irregular, fruitless and wasteful.

I could not find any evidence to substantiate the allegation of Mr. Makasi’s influence and
instructions to senior officials. We interviewed several senior departmental officials, all of
whom denied the alleged involvement and interference by Mr Makasi. Such interference, if
there was any, would have also shown in the submission of internal documents, like internal
memoranda of approvals.

As part of remedial action, I direct the Director-General (DG) to take note of my findings and
ensure that any future Information and Communication Technology procurement is aligned
with the requirements of the Constitution, the State Information Technology Act, the relevant
Treasury Regulations and departmental policies.

The DG must take appropriate disciplinary action against Mr. Mathe for the irregular, fruitless
and wasteful expenditure incurred and to continue giving support to the Special Investigating
Unit (SIU) in the civil litigation process and/or any other process currently under way by the
SIU.

The DPCI must consider this report and establish if any acts of impropriety identified herein
amount to acts of a criminal conduct in terms of the Prevention and Combatting of Corrupt
Activities Act, 2004 and pursue criminal investigations against the perpetrators.

Mantell vs SAA (Report 120 of 2019/20)

I investigated alleged procurement irregularities and maladministration concerning the

termination of a tender earlier awarded to Mantellis Biscuit Factory (MBF) by South African
Airways’ (SAA) catering subsidiary, AirChefs. MBF is a catering company supplying on-board
meals to SAA, SA Express and Mango passenger carriers.

20
The investigation followed a March 2014 complaint by Mr. Simon Mantell, alleging that MBF
submitted a bid in response to an advertised tender for the supply of “dry snacks”. The tender
was advertised on 07 April 2013 in the Sunday Times newspaper, with 29 April 2013 set as
the closing date for bids. MBF bade to supply “3 in 1 cracker snacks”.

Mr. Mantell alleged receiving an email from a certain Mr. Prishaan Grounder at AirChefs on
21 February 2014 with an attachment dated 17 February 2014 but signed a day later, in which
an Acting Chief Executive of AirChefs, one Mr. Martin Kemp, congratulated MBF on being the
successful bidder to supply AirChefs with 365 000 units per month, costing over R4million a
year.

He further alleged that he was later informed over the telephone – while enquiring about the
finalisation of the agreement and the handover – that MBF had not actually been awarded the
tender but rather that the company would merely be a preferred supplier for biscuits.

This, according to him, implied that AirChefs would only present MBF’s products to its airline
clients when requested and that another company called Wheatworth would remain the
supplier of crackers for SAA while MBF’s crackers may be presented to smaller clients such
as SA Express. Unhappy with being considered part of a panel of suppliers when he had
submitted a bid as a single supplier, Mr. Mantell lodged an objection with AirChefs. This
culminated in a protracted dispute with both AirChefs and SAA.

My investigation revealed that the decision by AirChefs to revise the letter of award of the
tender and re-issue Mr. Mantell’s company with a different correspondence inviting him to form
part of a panel of suppliers for snacks was irregular as the tender was for the provision of
services and not an invitation to form part of a panel of service providers.

The withdrawal of the tender award letter and issuing another saying something else was also
irregular as AirChefs became functus officio the moment it awarded the tender. It could not
withdraw the award without a court order.

I further found that Mr. Mantell’s company was improperly prejudiced in that it suffered financial
loss or expenses incurred in preparing and submitting bid documents as well as other costs
relating to meetings, travel, accommodation, exchange of correspondence with SAA,
procuring a legal opinion and representation in the longstanding dispute with the national
carrier.

To remedy this maladministration and improper conduct, I directed the Chairperson of the SAA
Board to take cognisance of the findings, ensures that there is a written apology to the
complainant and sees to it that the complainant is reimbursed for all the proven out-of-pocket
expenses.

The Chairperson must further ensures that the CEOs of AirChefs and SAA consider the report
in so far as it relates to the gaps identified in the National Treasury and Indyebo reports and
addresses the gaps, as well as consider the acts of maladministration and improper conduct
referred to in the report and take appropriate disciplinary action against any official implicated.
The CEOs must do the same.

Kleynhans vs Free State Department of Human Settlements (Report 147 of 2019/20)

21
I investigated allegations of maladministration concerning the award of a contract for the
eradication of asbestos roofs in the Free State province to Black-Head Consulting Proprietary
Ltd/Diamond Hill Trading 71 Proprietary Limited Joint Venture by the provincial Department of
Human Settlements in the 2014/15 financial year.

The investigation was a result of an October 2015 complaint from a Democratic Alliance
member of the Free State Provincial Legislature, Ms. Leona Kleynhans. In essence, the
complaint was that the contract was irregularly awarded as it was contrary to Treasury
Regulation 16A 6.6.

Following a thorough analysis of the complaint, I decided to investigate three issues. First, I
looked into whether the department failed to follow proper procurement processes in awarding
the contract to the service provider and whether such conduct was improper, unlawful and
constituted maladministration. This allegation is substantiated.

Second, I investigated whether the services provided were cost-effective and whether the
department received value for money in the execution of the contract. This allegation is also
substantiated. Lastly, I investigated whether the advance payment to the service provider was
irregular and whether the invoices which the department made payment on complied with the
legislative prescripts. This allegation, too, is substantiated.

A copy of this report has been provided to the National Director of Public Prosecution in terms
of the Public Protector Act to notify her that I am of the opinion that the facts disclose a
commission of an offense. A copy was also provided to the Head of the Special Investigation
Unit to investigate the possibility of the recovery of any fruitless and wasteful expenses in
terms of the proclamation issued by the President. I noted in the news this last week that the
Premier of the Free State has handed a copy to the police in compliance with this directive.

With regard to the appropriate remedial action, I direct the Premier to take appropriate steps
to ensure that the conduct of the Accounting Officer and the Director for Supply Chain
Management (SCM) is investigated in terms of section 84 of the Public Finance Management
Act (PFMA) and that the conduct is reported in terms of section 86 of the PFMA to the South
African Police Service and the Directorate for the Priority Crime Investigation.

In addition to this, the HOD must take appropriate steps to ensure that the conduct of the
Director for SCM is investigated in terms of section 84 of the PFMA. The HOD to also take
appropriate steps to ensure that the department’s SCM policy is amended to correctly reflect
the legislative prescription and to take appropriate steps to ensure that officials are properly
trained in the legislative prescripts in respect of SCM.

I must clarify that, by HOD, I am referring here to the position and not the implicated person
who held the position at the time of the project. The Premier will address this. I must also make
mention that we received review papers from the Accounting Officer. We have also noted that
the Premier, Ms. Sisi Ntombela, has handed the report to the police as per our remedial action.

IMPROPER OR DISHONEST ACTS/CORRUPTION

22
Tsatsimpe and others vs Mahikeng Local Municipality (Report 130 of 2019/20)

I investigated an October 2015 complaint in which it was alleged that the Mahikeng Local
Municipality has, since August 2011, failed to complete the construction of an access road
from Kaalpan to Nooitgedacht villages from gravel to tar. The complaint was laid by Mr. MW
Tsatsimpe and others.

My investigation focused on three issues. First, whether the municipality improperly failed to
complete the construction of the access road since August 2011. Second, whether the
municipality irregularly paid the contractor for the incomplete construction of the road, resulting
in irregular, fruitless and wasteful expenditure. Last, whether, in the circumstances, the
complainant and the community of Kaalpan village were prejudiced as a result of the conduct
of the municipality.

I found that all three allegations were substantiated. A period of eight years has lapsed while
the construction of the access road remained incomplete. The contractor was paid
R4 439 436.54 including 14% VAT. The erstwhile Head of the Department of Roads, Mr. AP
Kembo, certified that the account was correct, that the service was rendered and that the
charges were fair and reasonable.

The municipality failed to provide my office with the names of the officials who inspected the
road and who authorized the payment to the contractor.

The community of Kaalpan has suffered prejudice as a result of the conduct of the municipality.
The incomplete road is prone to flooding in rainy seasons. This poses a risk to the community
and has the potential to cause damage to vehicles making use of the road.

To remedy this improper conduct and maladministration, I direct the Municipal Manager to:

a) Ensure that the report is tabled before council within 15 working days from the date of
this report;
b) Within 90 working days of this report, conduct an analysis of work still to be done on
the road, determine the costs thereof and the timelines within which the project can be
completed;
c) Within 120 working days of this report, determine the amount overpaid to the contractor
and initiate a legal process to claw back the excess amounts;
d) Within 60 working days of this report, report to the Directorate for Priority Crime
Investigation the activities of any official who inspected the road and authorized that
the contractor be paid while the road was incomplete;
e) Within 60 working days of this report, take internal disciplinary action against any
official who inspected the road and approved payment for stages which were not
completed and authorized payment to the contractor for the incomplete road
construction;
f) Within 45 working days of this report, provide me with an action plan regarding the
completion of the road following the assessment of outstanding work, the cost thereof
and the appointment of a service provider; and

23
 g) Within 30 working days of this report, apologise in writing to the complainant and the
community for Kaalpan village for the prejudice caused.

It is worth mentioning that the police have made contact with my office in Mahikeng to give
effect to our remedial action in respect of this matter.

Nyathela vs the National Arts Council (Report 125 of 2019/20)

I investigated allegations of maladministration, corruption, nepotism and abuse of power by

the National Arts Council (NAC). The complaint was lodged by Mr. Freddy Nyathela on behalf
of the South African Roadies Association (SARA).

He alleged abuse of power and subversion of due processes by the Chief Executive Officer
(CEO) of the NAC and falsification of the SARA’s funding application by the CEO.

I investigated whether the CEO of the NAC submitted an application to EXCO for partnership
funding using the Complainant’s name without his consent, and if so, whether such conduct
was improper and constitutes maladministration. This allegation is substantiated.

I also investigated whether there was impropriety and abuse of the Expired Projects and
Surplus Policy, by the NAC in the distribution of the surplus funds resulting in prejudice to the
Complainant. This allegation, too, is substantiated.

For remedial action, I direct the Minister of Sports, Arts and Culture to take note of the report
in so far as the findings and remedial action contained therein are concerned and as the
Executive Authority, assist in ensuring that the remedial action as provided for hereunder is
expedited.

The Chairperson of the NAC Board must:

a) Act in accordance with his fiduciary duty of ensuring that the inconsistencies identified
in the Policy during my investigation are addressed , by setting in motion a process to
amend the Policy and promulgate Standard Operating Procedures on the
implementation of Expired Projects and Surplus Funds Policy so as to align it with the
relevant legislative framework;

b) Amend and strengthen the Expired Projects and Surplus Policy in order to close the
gaps that exist in it, so as to prevent the NAC staff and other NAC stakeholders from
exploiting the Policy contrary to the ethos of fairness, equity, transparency, competition
and cost effectiveness as enshrined in the Section 217 of the Constitution of the
Republic of South Africa;

c) Where necessary put in place Standard Operating Procedures to cure the

inconsistencies in the implementation of the Policy as revealed by my investigation;

d) Generally to align the internal NAC Policy toolkit with the relevant legislative framework
such as sections 33(1) and 217 of the Constitution, section 51(1)(b)(iii) of the PFMA,

24
 sections 3(1) and 3(2)(b)(i) of PAJA, Regulation 16A8 of the National Treasury
Regulations as well as Regulation 13(c) of the Public Service Regulations, 2016;

e) Must within thirty (30) days of the issuing of this report, ensure that a letter of apology
is issued by the CEO to the Complainant for the manner in which he was treated by
the NAC, including the formal letter on the outcome of his 2014 application and cogent
reasons for its rejection; and

f) Must within thirty (30) days of the issuing of this report ensure that the CEO has put in
place a “Declaration of Interest register” for all NAC employees relating to the projects
they have initiated since 2015 to date, so as to manage any prevalent conflict of
interest.

In conclusion, these findings show serious deficiencies in the areas of appointment of staff
and public procurement. They also point to the propensity by some state functionaries to
abuse their power. Such findings have become so frequent that it appears the problems are
systemic. I urge the public sector to use these findings and remedial action to fix their systems.
Use these reports even when they do not relate to your department or institution.

In the same vein, I wish to remind all of the affected parties of the Constitutional Court’s
pronouncements in conforming the powers of my office. In Economic Freedom Fighters v
Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National
Assembly and Others, the Court per Chief Justice Mogoeng stated the following:

 Complaints are lodged with the Public Protector to cure incidents of impropriety,
prejudice, unlawful enrichment or corruption in government circles;

 An appropriate remedy must mean an effective remedy, for without effective remedies
for breach, the values underlying and the rights entrenched in the Constitution cannot
properly be upheld or enhanced;

 Taking appropriate remedial action is much more significant than making a mere
endeavour to address complaints which was the most the Public Protector could do in
terms of the Interim Constitution. However sensitive, embarrassing and far–reaching
the implications of her report and findings, she is constitutionally empowered to take
action that has that effect, if it is the best attempt at curing the root cause of the
complaint;

 The legal effect of these remedial measures may simply be that those to whom they
are directed are to consider them properly, with due regard to their nature, context and
language, to determine what course to follow;

 Every complaint requires a practical or effective remedy that is in sync with its own
peculiarities and merits. It is the nature of the issue under investigation, the findings
made and the particular kind of remedial action taken, based on the demands of the
time, that would determine the legal effect it has on the person, body or institution it is
addressed to;

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  The Public Protector’s power to take appropriate remedial action is wide but certainly
not unfettered. What remedial action to take in a particular case, will be informed by
the subject-matter of the investigation and the type of findings made;

 Implicit in the words “take action” is that the Public Protector is herself empowered to
decide on and determine the appropriate remedial measure. And “action”
presupposes, obviously where appropriate, concrete or meaningful steps. Nothing in
these words suggests that she necessarily has to leave the exercise of the power to
take remedial action to other institutions or that it is power that is by its nature of no
consequence;

 The Public Protector has the power to determine the appropriate remedy and prescribe
the manner of its implementation;

 “Appropriate” means nothing less than effective, suitable, proper or fitting to redress or
undo the prejudice, impropriety, unlawful enrichment or corruption, in a particular case.

 The remedial action taken by the Public Protector has a binding effect. The Court
further held that: “When remedial action is binding, compliance is not optional, and
whatever reservations the affected party might have about its fairness,
appropriateness or lawfulness. For this reason, the remedial action taken against those
under investigation cannot be ignored without any legal consequences.”

More recently, in the case of EFF v Gordhan and others; Public Protector and Another v
Gordhan and Others, the Court, while stating that the Public Protector is not insulated from
criticism, cautioned against the penchant by some in society to make comments that could be
perceived as undermining the office and its constitutional powers.

In this respect, the Court stated that:

“Similarly, the Public Protector is a constitutional servant, like the courts, and her Office should
be afforded respect. It is an office of fundamental constitutional significance and her powers
are not only desirable but also necessary for the purpose, inter alia, of holding public office
bearers accountable. Her role in our constitutional democracy cannot be gainsaid. While she
may be criticised, these comments should not be perceived as undermining her Office and its
constitutional powers. To mount a bad faith attack on her Office would surely work to
undermine the constitutional project of the Republic.”

I trust that all of these will be taken into account as we engage with my findings in the reports
issued today. Copies are being uploaded on the website as we speak.

Let us stay safe and observe the lockdown regulations.

Thank you.

Adv. Busisiwe Mkhwebane

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Public Protector of South Africa

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