Eight current and former members of the Independent Police Investigative Directorate (IPID) have filed court papers accusing Public Protector Busisiwe Mkhwebane of failing to fulfil the responsibilities of her office in her investigation into procurement and staff irregularities at the police watchdog.
The IPID officials, including former IPID boss Robert McBride and head of investigations Matthews Sesoko, want an interdict against implementing the remedial action in Mkhwebane’s report, released in September 2019, pending their review to set the report aside.
McBride and Sesoko are joined by Nomkhosi Netsianda, Marianne Moroasui, Baatseba Mothlale, Innocent Khuba, David de Bruin and Thereza Botha, all of whom are implicated in the report.
The report said disciplinary action should be taken against officials who appointed and then hired an investigator to look into threats against IPID officers. It also said IPID must launch a judicial process to set aside the appointment of the investigator, Thereza Botha, as well as disclose all relating unauthorised, irregular and wasteful expenditure to Parliament.
“The report is plagued with flagrant inaccuracies, illogical conclusions and errors of law. It is plainly irrational, unreasonable and unlawful,” said IPID investigations head Matthews Sesoko in his affidavit.
The eight applicants first want to interdict Mkhwebane’s remedial action, due to be implemented between 28 October and 9 December 2019, before they seek to overturn the report in court.
Sesoko’s affidavit details claims against Mkhwebane for failing to take into account the available evidence and ignoring the laws she is meant to uphold.
“It is also difficult — if not impossible — to link some of the remedial action to a particular finding,” claimed Sesoko, who testified at the State Capture commission recently.
Parliament has moved to hold an inquiry into Mkhwebane’s fitness to hold office after court judgments in the Bankorp/SARB and Estina Dairy cases found she had failed to fulfil her duties. President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan have won interdicts against implementing Mkhwebane’s recommendations against them, with further likely bruising legal battles for the public protector ahead.
The public protector found the appointment of Botha as an external contractor to investigate death threats against IPID officers was not justified as an emergency hire. She claimed the threats were “sensationalised”.
“It shows that the public protector considered irrelevant factors and ignored relevant ones,” said Sesoko in his affidavit.
Botha was later hired in a process the public protector found was tailored and biased to support her appointment. Mkhwebane said Botha did not have the relevant qualifications for the position.
Sesoko said Mkhebwane’s finding was not backed up by evidence in her report and was “flawed” as Botha’s experience met the relevant qualifications and was verified by the SA Qualifications Authority.
Sesoko said the recommendation to initiate proceedings to remove Botha as deputy director of IPID’s national specialised investigations team was “nonsensical” and an “embarrassment”.
IPID’s lead investigator went the hardest on Mkhwebane’s treatment of the complainant to her office, former IPID officer Cedrick Nkabinde, who resigned in 2018 after reaching a settlement with the organisation and dropping claims against McBride.
Mkhwebane found Nkabinde and IPID were prejudiced by Botha’s appointment. Sesoko said Nkabinde had admitted to giving false statements about IPID members while he frustrated the watchdog’s investigation into former national police commissioner Khomotso Phahlane, after he was offered a promotion by SAPS officers to Crime Intelligence.
“The entire section on prejudice is incoherent and without any basis. It is a mess, and there is nothing to salvage from it,” said Sesoko.
“The finding is a gross dereliction of the public protector’s responsibilities. It is an abuse of her power to spew out such nonsense, and is clearly unlawful and unconstitutional.”
Sesoko said Mkhwebane ignored complaints by IPID officials that one of the public protector’s investigators, Vusi Dlamini, had previously worked with Nkabinde. He also claimed she erroneously dismissed claims that SAPS essentially tried to corrupt Nkabinde.
“The Report is a product of bias (or the reasonable suspicion of bias) and ulterior motive,” said Sesoko on Dlamini’s supposed relationship with Nkabinde.
“The public protector was presented with two versions of events, and she should have fallen on the side of caution. After all, given the relationship between Mr Dlamini and Mr Nkabinde, the involvement of Mr Dlamini in the investigation creates a reasonable suspicion of bias or ulterior motive.” DM