Sign the petition! State Must Act Against Corruption & Abuse of Power!

Hands off The Public Protector!

1. The investigation into alleged improper conduct and maladministration perpetrated by the National Commissioner of South African Police Service (SAPS), Bheki Cele, and the Minister of Public Works (PW), Gwen Mahlangu-Nkabinde has been completed and a comprehensive report submitted (See Annexure A for a brief summary). It is now up to the National Prosecuting Authority (NPA) to urgently move the process forward. It is in the interest of the Rule of Law and our faith in the Justice system that the case against General Cele and Minister Mahlangu-Nkabinde be brought before the courts.

2. Crime and corruption is destroying our social fabric and the institutions of the state. The rights to human dignity, life, freedom and security of the person, and ethical, professional, effective, efficient, open and accountable public administration are all violated by crime and corruption. It is important that our criminal justice system is seen to act without favour and to be effective and efficient in its function.

3. On 22 February 2011, the Public Protector Advocate Thuli Madonsela, assisted by the Special Investigations Unit (SIU), issued her report (Against the Rules Report No. 33 of 2010/11) relating to "allegations of maladministration, improper and unlawful conduct by the Department of Public Works and the South African Police Service relating to the leasing of office accommodation in Pretoria". President Jacob Zuma correctly issued the proclamation for the SIU to assist the Public Protector with her investigation.

4. In the Public Protector's report, the Police Commissioner General Cele, the Minister of Public Works Ms. Mahlangu-Nkabinde and their respective departments are implicated in unlawful, improper conduct that violates South Africa's laws and Constitution relating to procurement, tenders and leasing of premises for the police. Their unlawful conduct relates to the businessman Roux Shabangu of Roux Property Fund.

5. The Public Protector made many findings and recommendations for urgent action by Treasury, Cabinet and the Minister of Police. She concluded that the remedial action must include:

5.1 An urgent review by Treasury to determine whether the contract with Roux Shabangu's company can be terminated immediately;

5.2 The Treasury "must determine whether any irregular or fruitless and wasteful expenditure was incurred by the SAPS and/or the DPW in respect of the procurement process and other matters related thereto and take appropriate action, where applicable";

5.3 Cabinet must at its first meeting after 22 February 2011 request reasons and justification from Minister Gwen Mahlangu-Nkabinde's for her intervention to continue the lease after two legal experts had separately concurred that the contract was invalid and the tender process flawed. The Public Protector required that the Secretary of Cabinet report within ten days of the meeting on the resolutions and actions taken by Cabinet.

IMPACT OF GENERAL CELE AND MINISTER NKABINDE-MAHLANGU'S CONDUCT

6. After its meeting of 2 March 2011 Cabinet issued the following statement:

"The report by the Public Protector on the SAPS lease agreement was noted and government is processing it. Cabinet has instructed the Secretary of Cabinet and the Minister of Justice to interact with the Public Protector's office on the report."

Cabinet must take swift action beyond noting and processing the report. However, the allegation that unlawful activities have taken place are not for the Cabinet to discuss but for the courts to decide.

7. The implication of General Cele and Minister Mahlangu-Nkabinde in improper and unlawful conduct related to leasing property worth more than R500 million is a serious blow to promises of good governance and clean administration free from corruption. The longer this situation remains unresolved the more damaging it will be in our efforts to stem corruption.

8. Allegations of corruption and impropriety at the highest levels do little to assist the government in mobilising communities to address our most pressing challenges. The image of SAPS was tarnished when our previous National Commissioner Jackie Selebi was convicted of corruption in 2010. We have made some progress in restoring faith in our Criminal Justice System through clear demonstration that no one is above the law. This is now once again being questioned.

ABUSE OF POWER

9. On 3 March 2011, SAPS intelligence officers were accused of attempting to intimidate the Public Protector by demanding documentation supposedly relating to the investigation. This follows a clear pattern of intimidation against those trying to hold senior police officials accountable. The Sunday Times journalist who broke this story was arrested for no rational reason and charges were withdrawn by the NPA.

10. SAPS Crime Intelligence was also the subject of a complaint to the Secretary General of Intelligence by the Sunday Independent after one of their journalist's phones was tapped, following an October 2010 article detailing allegations of nepotism, fraud, mismanagement and corruption in this police division.

DEMANDS

11. The manner in which action based on Advocate Thuli Madonsela's report is handled is vital to democracy and our efforts at combating crime and corruption. We therefore demand:

11.1 A full, independent and transparent investigation into police misconduct, overseen by the Independent Complaints Directorate (ICD), and appropriate action taken if any instances of unlawful behaviour are uncovered. 

11.2 That the NPA urgently investigates the findings of the Public Protector's report, and considers prosecution. 

SIGN THE PETITION!

To endorse this memorandum in your personal capacity sign the petition titled "State Must Act Against Corruption and Abuse of Power!" here (PET#00557).

To endorse this petition as an organisation or group please email Joel Bregman at [email protected]

Annexure A: Background and Timeline

1. On 1 August 2010, Sunday Times journalist Mzilikazi wa Afrika publishes a story exposing alleged irregularities pertaining to a lease for a new police HQ in Pretoria to the value of R500 million. The article alleged improper conduct and maladministration perpetrated by the National Commissioner (NC) of South African Police Services, Bheki Cele, and the Minister of Public Works (PW), Gwen Mahlangu-Nkabinde.

2. On 3 August 2010, the Office of the Public Prosecutor (PP) receives a complaint to investigate these claims following its coverage in the press.

3. On 4 August 2010, wa Afrika is publically arrested by members of the SAPS Directorate for Priority Crime Investigations (DPC), a.k.a. The Hawks. Despite claims at the time of his arrest that there was prima facie evidence against him, he was subsequently released without charge. This was clearly a scare tactic and an act of intimidation against the media, and wa Afrika in particular, for exposing these activities.

4. On 10 August President Zuma issues Proclamation R.42 of 2010 which appointed the Special Investigating Unit (SIU) to assist the PP in this investigation. The SIU falls outside of the SAPS and undertakes investigating based on proclamations issued by the President.

5. This joint investigation was conducted over 5 months and concluded that the lease deal was unlawful, improper, a violation of the Constitution, the Public Finance Management Act (PFMA), Treasury regulations and supply chain management rules and policies.

6. On 3 August 2010, the PP requests that the NC of SAPS and the Director General (DG) of DPW halt the implementation of the lease pending finalisation of the investigation. On 10 August 2010, SAPS and DPW indicated their compliance with the PP request to suspend further actions.

7. By 13 September 2010, the DPW had conducted an internal inquiry into the matter. The opinion of the inquiry as well as Senior Counsel indicated that the lease was null and void because it has been developed as a result of improper and illegal procedures. Senior Counsel recommended that DPW apply to the High Court for the lease to be annulled.

8. Despite these recommendations, and a confirmation by the DG of DPW on 11 October that the department accepted the findings of the investigation and was in the process of implementing the recommendations, the DPW and SAPS continued and the lease was signed by DPW.

9. On 31 October 2010, Ms Gwen Mahlangu-Nkabinde replaces Mr Geoff Doidge as the Minister of Public Works. Doidge was axed by Zuma along with 6 other Ministers in a cabinet reshuffle.

10. On 22 November 2010, Senior Counsel concluded that the contract between the DPW and Roux Property Fund (RPF), was unlawful, thereby rendering the lease agreement invalid. On the same day, despite this advice, the DPW advises Nedbank, the financiers of RPF, that it was continuing with the lease. This was followed by a public announcement by Minister Mahlangu-Nkabinde that the DPW was continuing with the implementation of the lease. On the same day, the DG of the DPW was suspended. This action, in conjunction with the removal of Minister Doidge, suggests that those who were not supportive of the deal or voiced criticisms, were simply removed and silenced.

11. With reference to the involvement of the NC of SAPS and SAPS itself, the report found that:

11.1 Cele acted improperly by approving funding for the lease despite the process not going out to tender. At any rate, the tender process must be handled by the DPW, the government body legally mandated to deal with such actions.

11.2 There was insufficient funding for this relocation of offices and that funds had to be readjusted to within the SAPS budget to be made available. According to the PFMA this decision to continue despite insufficient funds constitutes a crime.

11.3 Cele and his staff deliberately manipulated the needs analyses to ensure that Roux Shabangu of RPF would secure the lease and extract the greatest profit. In October 2009, the previous owners had offered to lease the building to SAPS at R85m² - this was declined. The Shabangu deal was accepted less than one year later at R125m². The total monthly rental amount was R3,287,988. If the deal had been made at R85m², the total monthly rental would have been closer to R2,200,000. The 2009 offer compared to the accepted 2010 offer would have cost the taxpayer an extra R13 million per year and approximately R130 million over the full lease period.

11.4 Cele himself admitted to the PP that the lease could not go out for tender because of Shabangu's prior involvement and that the process had already be tainted.

12. With reference to the involvement of the Minister of PW, Gwen Mahlangu-Nkabinde and her department, the report found that:

12.1 The procurement of the lease was not cost effective or competitive, nor was it equitable or transparent. It did not comply with Section 217 of the Constitution, PFMA, Treasury regulations and supply chain management rules and policies. The report found that, ‘This conduct was improper, unlawful and amounted to maladministration'.

12.2 The entire process was unlawful because there was no open tender, and no justification for the deviation from this normal procedure.

12.3 The decision to disregard the advice of Senior Council was a breach of the Minister's fiduciary responsibility and a reckless misappropriation of public funds.

The full official report of the Public Protector can be read here - PDF:

Issued by the Social Justice Coalition on March 4 2 011

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