South Africa


Public Protector names and shames non-compliant institutions

Public Protector names and shames non-compliant institutions
Public Protector Busisiwe Mkhwebane. (Photo: Leila Dougan)

The ConCourt’s Nkandla judgment was clear. If not taken on review, government institutions must adhere to the Public Protector’s remedial action. Busisiwe Mkhwebane on Thursday named those who refuse to toe the line.

Frustrated by a lack of funds to follow up matters in court, Public Protector Busisiwe Mkhwebane took the unusual step on Thursday of naming the government institutions that have failed to comply with her office’s reports.

Speaking at her offices in Tshwane, Mkhwebane listed 38 matters where institutions have not acted on the Public Protector’s binding remedial action. Among those, she had to “name and shame” were National Treasury, Eskom, the SANDF, the CCMA, the premier of Limpopo, the Department of Higher Education and Training, and the City of Tshwane.

The idea is that, in the end, public pressure should cajole them to do the right thing,” said Mkhwebane.

Indeed, it is a tragedy that, with all these powers we possess, we have had to resort to this way of doing things,” she added.

She said that while reports are most often adhered to, the Public Protector’s office often invests significant resources into its investigations only for them to be ignored by the concerned institution of government.

In most cases, those left high and dry are those very people at the grassroots. This is a section of society that does not have the means to take the government to court as a way of protecting themselves from prejudicial decisions of the state,” said Mkhwebane.

Despite numerous follow-ups from our side, writing letters and even holding meeting with them, they still don’t move, thereby causing the complainants to suffer all over again. What this effectively means is that, in some quarters, my office’s directives have become inconsequential,” she added.

She highlighted a case in uMzimkhulu Local Municipality where two whistle-blowers went into hiding after exposing maladministration. She ordered President Cyril Ramaphosa to act against Police Minister Bheki Cele for failing to provide security for the two men. Former ANCYL secretary-general Sindiso Magaqa was a PR councillor in the municipality when he was murdered.

Action is yet to be taken,” she said.

Mkhwebane also noted the case of the Vhembe Concerned Pensioners. They complained National Treasury and the Government Employee’s Pension Fund had acted improperly while privatising the Venda Pension Fund.

In 2011, the Public Protector’s office found the group had not been properly informed of the privatisation, had lost some of their benefits and had suffered prejudice. The Public Protector issued a follow-up special report in 2016 only for Treasury to conduct its own investigation where it disagreed, and on Thursday said it would finally take the matters under legal review.

Mkhwebane has released 70 reports since she started as Public Protector in 2016, of which 21 have been taken on review. Her office is only defending 13 of those, which have an impact on the office’s responsibilities, due to resource constraints.

It stressed that in the execution of my investigative, reporting or remedial powers, I am not to be inhibited, undermined or sabotaged and that my investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw state power,” she said.

In March 2016, the Constitutional Court ruled the Public Protector’s remedial action is binding unless set aside on review by a court. The high-profile case forced former president Jacob Zuma and the National Assembly to act on former public protector Thuli Madonsela’s Nkandla recommendations.

The Public Protector would arguably have no dignity and be ineffective if her directives could be ignored willy-nilly,” read the Constitutional Court judgment.

The power to take remedial action that is so inconsequential that anybody, against whom it is taken, is free to ignore or second-guess, is irreconcilable with the need for an independent, impartial and dignified Public Protector and the possibility to effectively strengthen our constitutional democracy,” it continued.

On Thursday Mkhwebane said the big question was what to do when institutions refuse to listen. She said her office didn’t have the budget to take all the matters to court so she decided to expose them publicly.

The Public Protector welcomed those who followed the rules. She said Gauteng Housing and Co-operative Governance MEC Uhuru Moila had recently complied with her recommendations and enquired whether there were any issues outstanding.

She used the example of Western Cape Premier Helen Zille for following the correct procedure. Mkhwebane last year found Zille had exposed herself to a conflict of interest. The premier recently got an interdict against the implementation of the remedial action and is taking the report on review.

Mkhwebane won a lifeline from Parliament’s justice committee on Tuesday. ANC and EFF members voted against conducting an inquiry into her conduct, which could have been used to remove her from office.

The DA instituted proceedings to remove Mkhwebane after her 2017 Bankorp report was set aside in court and the judgment criticised her understanding of her role and could be “reasonably suspected of bias”.

ANC and EFF MPs on Tuesday said it would be premature to institute removal proceedings while the Constitutional Court is yet to rule on Mkhwebane’s appeal against the personal cost order issued in the Bankorp case. DM


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