PUBLIC PROTECTOR CLOSES SEVERAL INVESTIGATIONS

Public Protector Adv. Busisiwe Mkhwebane has closed a number of investigations involving allegations of wrongdoing against President Cyril Ramaphosa, Minister of Public Enterprises Pravin Gordhan, former Minister of Finance Tito Mboweni, former Leader of the Opposition Mmusi Maimane, the Public Investment Corporation and the Land Bank, among other respondents.

In summary, the respondents were alleged to have failed to uphold the Constitution, breached the Executive Ethics Code, engaged in maladministration and improper conduct, violated the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members or unduly benefited from public business transitions.

The investigations were closed on various grounds including insufficient evidence to substantiate the allegations, that the same issues were pending before the courts or that preliminary investigations confirmed that the matters fell outside of the Public Protector’s jurisdiction as spelt out in the Constitution and the Public Protector Act 23 of 1994.

“We analysed the complaints, identified issues for preliminary investigation and in some instances for full investigation, reviewed all relevant documentary evidence, sought responses from the respondents and analysed the evidence. We then applied the applicable laws to the facts and made our conclusions,” Adv. Mkhwebane explained.

“Throughout the various investigations, we sought to establish what happened, what should have happened and whether there was a discrepancy between the two and whether discrepancy, if any, constituted maladministration and improper conduct.”

Reports stemming from these investigations have been made public in terms of section 182(5) of the Constitution, read with sections (2A) (a) and 8(1) of the Public Protector Act 23 of 1994. All of the complainants, respondents and other affected parties have been furnished with copies. They can be accessed on www.pprotect.org.

SUMMARIES

Scheepers v Gordhan (Report No. 4 of 2021/22)

The Public Protector investigated allegations of maladministration and improper conduct relating to the failure by the Minister of Public Enterprises, Mr. Pravin Gordhan, MP or a duly appointed representative to ensure that the National Ports Authority (NPA) was incorporated as a company as envisaged by the National Ports Authority Act No. 12 of 2005 (NPAA). A complaint received on 6 May 2019 from Mr. Jan D Scheepers triggered the investigation.

Mr. Scheepers alleged that Minister Gordhan neglected his constitutional obligation of ensuring that the NPA was incorporated as a company in terms of section 3(2) of the NPAA and instead Minister Gordhan or a delegated official permitted Transnet SOC Ltd to integrate the NPA as its operating division. This, according to Mr. Scheepers, compelled the NPA to execute Transnet’s strategy and corporate goals, including increasing its market share and protecting volumes against new entrants and thus taking over the NPA for its strategic and competitive purposes.

Upon a thorough analysis of the complaint, the Public Protector decided to investigate whether Minister Gordhan or a duly appointed representative failed to take the necessary steps to ensure that the NPA was incorporated as a company as envisaged by the NPAA and, if so, whether such conduct constituted maladministration and improper conduct.

Evidence obtained and considered during the investigation indicated that the issue Mr. Scheepers raised was currently the subject of litigation before the High Court of South Africa (KwaZulu-Natal Division) in Durban under Case Number 5520/2016.

In addition, the President of the Republic of South Africa, His Excellency President Matamela Cyril Ramaphosa has since remedied the anomaly by announcing the establishment of an independent NPA with its own Board of Directors appointed by the Minister of Public Enterprises.

In accordance with the principles of the Public Protector’s previous findings in a similar matter, as well as considering Mr. Scheepers’ representations, the Public Protector consciously decided to allow the judicial process to take its course and for the court to make a competent pronouncement on the matter, which the Public Protector would, by law, be bound to in any event. On the basis of these factors, the Public Protector decided to close the investigation.

Bachu v Maimane (Report No. 39 of 2021/22)

The Public Protector investigated allegations of violation of the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members by the former Leader of the Democratic Alliance and Member of Parliament Mr. Mmusi Maimane.

The investigation was prompted by a complaint lodged by the Leader of the Hindu Unity Movement, Mr. Jayraj Bachu on 11 October 2019, in connection with what he had considered to be the violation of the Code by Mr. Maimane.

In his complaint, Mr. Bachu asserted that, in 2017 and 2018, Mr. Maimane had declared in the Parliament Register of Members’ Interest, a property valued at approximately R4 million located in the suburb of Claremont in Cape Town as his own, notwithstanding the fact that the house belonged to a shelf company with registration number K2016495571, owned by a Durban-based businessman, Mr. Wessel Jacobs.

In addition, Mr. Bachu alleged that the relationship between Messrs Maimane and Jacobs appeared to extend beyond that of a lessor and lessee on the basis that they both confirm that they have been friends for a long time. As a consequence, Mr. Bachu requested that an investigation be instituted with a view to determining, inter alia, whether:

1. Mr. Maimane deliberately misled Parliament by declaring the property located in the suburb of Claremont, Cape Town as his own and in so doing, whether he had violated the Code;

2. Mr. Maimane and/or any other senior members of the DA, as well as the organisation itself were financially supported by Mr Jacobs;

3. Mr. Jacobs was involved and/or funded Mr Maimane’s leadership campaign and the DA during the 2014 national election campaign; and

4. Mr. Maimane financially benefitted from the former Chief Executive Officer (CEO) of Steinhoff International Holdings (Steinhoff), Mr Marcus Jooste and whether Mr Maimane owned a Toyota Fortuner Sport Utility Vehicle (SUV) donated by Steinhoff.

Mr. Bachu contended that, Mr Maimane might have misled and/or misrepresented information to Parliament by declaring, in the Parliament Register of Members’ Interest, the Claremont property as his own and later on retracted the declaration by stating that he was renting the property from his long-time friend.

On the back of a thorough analysis of the complaint, the Public Protector decided to launch a preliminary investigation in terms of section 7(1) of the Public Protector Act 23 of 1994 into whether Mr Maimane misled Parliament by declaring, in the Parliament Register of Members’ Interests, that he was the owner of the property located in the suburb of Claremont, Cape Town as well as failure to declare any funding or gifts received from Messrs Jacobs and Steinhoff, and if so, whether the conduct constituted the violation of the Code.

The purpose of the preliminary investigation was to determine the merits of the complaint and how the matter concerned should be dealt with. This entailed the assessment of the complaint, legal research and the analysis of relevant documents.

Following the preliminary investigation, the Public Protector decided to close the matter on the basis that the office was precluded from investigating the matter as it did not fall within the ambit of the breach of the Code. This was because Mr. Maimane resigned as a Member of Parliament in October 2019.

In addition, the matter did not fall within the Public Protector’s jurisdiction as envisaged in sections 182 and 239(a) and (b) of the Constitution read with sections 6(4), 6(5) and 6(7) of the Public Protector Act, 1994. This is to say Mr. Maimane was not performing a public function in any of the state departments nor administrative functions in the national, provincial and local spheres of government.

Shivambu v Gordhan (Report No. 41 of 2021/22)

The Public Protector investigated allegations that the Minister of Public Enterprises, Mr Pravin Gordhan, MP interfered with the recruitment process of the Chief Executive Officer (CEO) of the Mango Airlines SOC Ltd.

It was alleged that in so doing, Minister Gordhan acted in violation of the Executive Ethics Code, 2000 (Ethics Code) published by proclamation in Government Gazette: No 21399 Notice No 41 Regulation 6853 in terms of section 2(1) of Executive Members’ Ethics Act, 1998 (EMEA), as amended by cabinet on 7 February 2007 through a Ministerial Handbook: A Handbook for Members of the Executive and Presiding Officers.

The investigation followed a complaint lodged on 28 October 2019 in terms of section 4(1) of EMEA by Chief Whip of the Economic Freedom Fighters (EFF), Mr Nyiko Floyd Shivambu, MP. He alleged that Minister Gordhan illegally instructed the Chairperson of Mango Board of Directors, Mr Matsidiso Peter Tshisevhe, through his advisor, to ensure that Mr Nico Bezuidenhout was appointed to the position of the CEO of Mango. In his own words, Mr. Shivambu stated that:

“We believe that Gordhan’s involvement in the appointment of Mr Bezuidenhout is unqualified, the lie about his qualification is inconsistent with Gordhan’s office and that he has exposed himself to a situation involving risk of a conflict between his responsibilities and private interest as required by section 96 (1) and (2) of the Constitution of the Republic of South Africa (sic).”

Mr. Shivambu further alleged that, when the South African Airways SOC Ltd Board of Directors wrote to inform him about the decision to appoint the CEO of Mango, Minister Gordhan used the information entrusted to him to improperly benefit Mr Bezuidenhout who otherwise would not have qualified for the position which he was later appointed to.

He added that Minister Gordhan did not act in good faith because the candidate that the Mango Board had initially recommended had gone through a rigorous interview process and the Minister’s involvement was not in the best interest of good governance.

Based on a thorough analysis of the complaint, the Public Protector decided to investigate whether Minister Gordhan’s alleged involvement in the recruitment process of Mango CEO was in violation of the Constitution and the Ethics Code.

The allegations that Minister Gordhan illegally instructed Mr Tshisevhe through his Advisor to ensure that Mr Bezuidenhout was appointed as the CEO of Mango could not be corroborated. There was no evidence supporting that allegations that Minister Gordhan used the information entrusted to him to improperly benefit Mr Bezuidenhout.

Minister Gordhan’s involvement in the appointment of Mr Bezuidenhout was in line with the Memorandum of Incorporation, which requires him to approve the appointment of the CEO of Mango, being a wholly owned subsidiary of the SAA.

The recruitment panel, comprising of the CEO of SAA and members of both the SAA and Mango Boards identified Mr Bezuidenhout as their preferred candidate for the position of the CEO of Mango when the post was re-advertised.

Therefore, the allegations that Minister Gordhan’s involvement in the recruitment process of the Chief Executive Officer of the Mango Airlines SOC Ltd was in violation of the Constitution and the Executive Ethics Code could not be corroborated. On the basis of the above, the investigation was closed.

Bricknell v Public Investment Corporation (Report No. 44 of 2021/22)

The Public Protector investigated allegations of impropriety in the approval of a loan application made by a private company called Afric-Oil (Pty) Ltd (Africoil) by the Public Investment Corporation (PIC). The investigation was prompted by a complaint by Mr. Nathaniel Denton Bricknell, the Secretary-General of African Democratic Change.

Mr. Bricknell requested the Public Protector to investigate what was widely reported in the media in June 2018 that Dr Zwelini Lawrence Mkhize, in his capacity as then Treasurer-General of the African National Congress (ANC), unduly benefited from a loan transaction to the value of R210 million between Africoil and the PIC. In essence, it was reported in the media that:

1. The attorneys of Zonkizizwe Investments, an entity wholly owned by the ANC, served a letter of demand to Africoil during October 2017, claiming an amount of R4.5 million for facilitating a loan transaction between Africoil and the PIC;

2. It was reported that according to the letter of demand, a meeting took place at Luthuli House during June 2016 where a loan application to the PIC was discussed and the “TG” agreed to promote Africoil’s projects, including providing support to facilitate Africoil’s loan application to the PIC (it is understood that “TG” refers to the Treasurer-General of the ANC who was at the time, Dr. Mkhize and this aspect of the complaint is not disputed);

3. According to the reports, the letter of demand stated that Africoil would then proceed to pay a facilitation fee to Dr. Mkhize in the amount of R4.5 million for facilitating the loan application between the PIC and the company, but this amount, or any part thereof was never paid; and

4. The meeting which took place in Luthuli House during June 2016 came after an initial loan application by Africoil had been rejected by the PIC.

On the basis of a rigorous analysis of the complaint, the Public Protector decided to investigate whether Dr. Mkhize improperly interfered in the PIC’s processes and procedures which led to the PIC granting a R210 million loan to Africoil.

The Public Protector also looked into whether in so doing, Dr. Mkhize received any payment for facilitating such a loan, thus resulting in impropriety as envisaged in section 182(1) of the Constitution or maladministration as contemplated in section 6(4) of the Public Protector Act.

The Public Protector found no evidence to support the allegation that Dr. Mkhize interfered in the PIC’s processes and procedures in his capacity as the Treasurer-General of the ANC during 2016, which led to the PIC granting a R210 million loan to Africoil, and in so doing, improperly received a payment for facilitating such loan.

This conclusion is also supported by the fact that there was no initial loan application which was declined by the PIC as was alleged in the complaint and reported in the media. This is a critical component of the complaint as the allegation was that Africoil only approached Noble, Zonkizizwe and Dr. Mkhize for assistance after an initial loan application was declined by the PIC.

The evidence also indicates that the disbursements of the funds to Africoil was not arbitrary, but followed a due diligence and approval process that was in line with the PIC’s document on the “Unlisted Investment Process” as well as the “Delegations of Authority for Unlisted Investments” dated July 2015.

The PIC officials who were involved in the due diligence process did not provide any evidence indicating that they were unduly influenced to deviate from the processes of the PIC in processing the Africoil loan application.

Based on the evidence availed by the PIC and considered, the allegations are not substantiated.

Therefore, a finding of impropriety as envisaged in section 182(1) of the Constitution or maladministration in terms of section 6(4) of the Public Protector Act cannot be made in this investigation.

Moloele v Land Bank (Report No. 45 of 2021/22)

The Public Protector investigated allegations of refusal by the Land Bank to conduct business with Mr. M. Moloele based on alleged false information that appeared in the media. The investigation followed Mr. Moloele’s early April 2019 complaint to the Public Protector.

In the complaint, Mr. Moloele alleged that the Land Bank refused to conduct business with him without just cause. He further alleged that the Land Bank’s decision in that regard was based on unverified media reports which related to illegal and fraudulent transactions, involving him and his alleged associates.

Based on the analysis of the complaint, the Public Protector decided to investigate whether the Land Bank improperly and unjustifiably refused to conduct business with the complainant, and if so, whether the conduct constituted maladministration and improper conduct.

Flowing from the evidence received namely the founding affidavit, the issues raised by Mr. Moloele in the High Court application are the same issues that he submitted to the Public Protector for investigation.

The court application was for “reviewing and setting aside the decision taken by the [CEO of the Land Bank]… to not transact and / or engage with the applicant in respect of financial or any other matters, either presently or in future, and in finding him to be a high risk potential client.”

It was also clear from the evidence that Mr. Moloele has not abandoned the court process as this matter is still proceeding before the High Court of South Africa, Gauteng Provincial Division, Pretoria, Under case number 11666/19.

Consequently, the pursuance of the matter and remedial action that may be imposed should adverse findings be made from a further investigation will serve no judicious purpose on the basis that the matter is still pending before the High Court.

In terms of Sec 6(3) of the Public Protector Act, 1994, and due to the fact that the matter is pending before court, the Public Protector will not conduct any further investigation into this matter.

Zulu v Ramaphosa (Report No. 46 of 2021/22)

The Public Protector investigated allegations of failure by the President of the Republic of South Africa, Mr. Matamela Cyril Ramaphosa, to uphold the Constitution in that he failed to provide protection to whistle-blower, Mr. Thabiso Zulu, even though he had undertaken to do so.

The investigation was brought about by Mr. Zulu’s complaint, which he lodged with the Public Protector on 24 April 2020. In the complaint, Mr. Zulu alleged that after an assassination attempt on his life on 26 October 2019, he spoke to the Minister of State Security, Ms Ayanda Dlodlo, who promised him that she was going to brief the President on his matter; Minister Dlodlo allegedly sent him a text message informing him that the President wanted to talk to him and that Minister Dlodlo even called him again to inform him that the President was on the line. Mr. Zulu alleged that the President then promised him that he was to be taken to a place of safety, and that he would be provided with protection.

He allegedly received a text message from then Presidency's spokesperson Ms. Khusela Diko informing him that the National Commissioner of SAPS, General Khehla Sitole had deployed police protection for him at hospital, but that this was also not true; and that the President had however, failed to provide him with security protection, despite having undertaken to do so.

After analysing the complaint, the Public Protector decided to launch a preliminary investigation into whether the President failed to uphold the Constitution by not providing Mr. Zulu with security protection, even though he had personally undertaken to do so.

In terms of section 7(1)(a) of the Public Protector Act, the Public Protector had to determine, on the basis of what was found from the preliminary investigation, how the matter should be dealt with.

Based on the complaint and analysis of the documentation received, the Public Protector has come to the conclusion that it would therefore be improper to pursue the matter further and make any pronouncement on the allegation that the President failed to uphold the Constitution, based on an alleged promise he made to Mr. Zulu as no evidence of such an undertaking could be established.

It was also unclear how the conduct of the President in this regard would constitute failure to uphold the Constitution on his part.

Furthermore, when Mr. Zulu was finally provided with such protection, he personally asked to be removed from it for personal reasons thereby rendering the basis for his complaint to the Public Protector inconsequential.

In the light of this, the Public Protector has therefore decided not to pursue the matter further and to finalise it by means of a closing report.

Waters v City of Ekurhuleni (Report 55 of 2021/22)

The Public Protector investigated allegations of failure by the City of Ekurhuleni Metropolitan Municipality to collect refuse in the Kempton Park area, resulting in an unhygienic build-up of refuse, putting community members at risk.

The investigation followed a complaint lodged on 30 August 2019 by Mr Mike Waters, the Gauteng Chairperson of the Democratic Alliance Party and MP.

Following the analysis of the complaint, the Public Protector decided to investigate whether the City failed to fulfil its legislative duty to collect refuse in and around the Kempton Park area as prescribed in the National Environment Management Waste Act.

The Public Protector concluded that the allegations raised by Mr. Waters that the City failed to ensure uninterrupted refuse removal services in the Kempton Park area, resulting in an unhygienic build-up of refuse, putting community members at risk, is substantiated.

This was based on evidence obtained during the investigation, particularly the admission by the City that there were challenges in the provision of waste management services and/or refuse removal in and around the Kempton Park area due to the breakdown of waste removal trucks, I am persuaded to

However, the Public Protector has also taken cognisance of the fact that the City has implemented an action plan by purchasing extra refuse removal trucks and distributing them around Ekurhuleni depots to address these deficiencies, as confirmed by the inspection in loco.

Nevertheless, had the Municipality ensured that the trucks were properly maintained/serviced and/or implemented the action plan sooner, the interruption of refuse removal services to the communities of Kempton would not have occurred.

Noting that the contract for the appointment of specialised waste management vehicles, equipment and support services on an “as and when” required basis was concluded on 30 June 2020, the Public Protector recommended that the City Manager timeously commence the procurement process prior to the cessation of this contract(s), to ensure the sustainable provision of refuse removal services in the Kempton Park area, without any interruptions.

The City Manager must also ensure that the waste removal trucks and other equipment associated with the sustainable provision of these services, are properly maintained and serviced as required and that any outsourced services are properly monitored and managed. The investigation was closed.

Shivambu v Mboweni (Report No. 59 of 2021/22)

The Public Protector investigated allegations that the former Minister of Finance, Mr. Tito Titus Mboweni, irregularly appointed Ms. Ranjeni Munusamy to the position of the Community Outreach Officer.

It was alleged that, in so doing, Mr. Mboweni acted in violation of the Executive Ethics Code, 2000 published by proclamation in Government Gazette: No 21399 Notice No 41 Regulation 6853 in terms of section 2(1) of Executive Members’ Ethics Act, 1998 (Executive Ethics Code).

The investigation followed a complaint lodged on 27 October 2020 by the Chief Whip of the Economic Freedom Fighters (EFF), Mr Nyiko Floyd Shivambu, MP, who alleged that the National Treasury stated in a statement on 21 October 2020 that Ms. Munusamy was appointed as a Community Outreach Officer while Mr. Mboweni stated that she was appointed as a Political Secretary.

He requested the Public Protector to investigate whether Ms. Munusamy’s appointment was made in terms of section 9 of the Public Service Act,1994 (Public Service Act), read with Regulation 66 of the Public Service Regulations of 2016 (PSR) irrespective of the position she occupied. In particular, Mr. Shivambu raised the following questions (in verbatim) in his complaint:

1. “Was the selection committee appointed in terms of section 67 of the Public Service Regulations of 2016;

2. If yes, who were the people appointed to the selection committee and who was the appointed chairperson of the selection committee;

3. When was the selection committee appointed and when did it make its recommendation; and

4. What were the valid methods, criteria or instruments used for selection?” (sic)

He also requested the Public Protector to establish whether it was “acceptable and rational for executive authority to appoint Ms Munusamy to such a sensitive position when there was undisputed evidence submitted to the Judicial Commission of Inquiry into Allegations of State Capture that Ms Munusamy received illegal money from the State Security slush fund”. (sic)

After a thorough analysis of the complaint, the Public Protector decided to investigate whether the former Minister of Finance irregularly appointed Ms. Munusamy to the position of the Community Outreach Officer and thereby contravened the Executive Ethics Code.

The Public Protector concluded that former Minister Mboweni’s appointment of Ms. Munusamy into the position of the Community Outreach Officer was made in terms of the Public Service Act read with Regulations 66(2) of the PSR.

The post to which Ms. Munusamy was appointed is included in Chapter 3 of the Guide for Executive Members.

It is the Public Protector’s view that the appointment made by former Minister Mboweni did not require the use of the selection committee save for compliance with the appointment criteria listed in Regulation 67(5)((b) to (d) of the PSR.

Whereas it was noted that the revelations made at the State Capture Inquiry might have placed the integrity of Ms. Munusamy into question, there was no evidence to conclude that the appointment of Ms. Munusamy by former Minister Mboweni was in violation of the Executive Ethics Code.

The investigation was closed on the basis that the allegations that former Minister Mboweni irregularly appointed Ms Munusamy to the position of the Community Outreach Officer and thereby violated the Executive Ethics Code could not be corroborated.

That former Minister Mboweni resigned as a member of Cabinet before the Public Protector could issue the final report and therefore President Ramaphosa can no longer take “any action” against him as envisaged in section 3(5) (a) of EMEA; and that Mr. Shivambu did not make further submissions in response to the discretionary notice that was issued to him on 24 August 2021 in terms of rule 42(1) of the Public Protector Rules also contributed to the closure of the matter.

Issued by the Office of the Public Protector, 30 September 2021