Thread by @PublicProtector

Thread: Public Protector Adv. Busisiwe Mkhwebane addressing the media

Adv. Mkhwebane: I have called this briefing to bring to the attention of the people of SA the challenges my office goes through when it seeks to do what the constitution expects us to do

Adv. Mkhwebane: When I took the office in 2016 I said my office will go out of its way to take its services to the grassroots

Adv. Mkhwebane: The constitution expects us to investigate, report on and take appropriate remedial action and remedy alleged or suspected improper conduct in all state affairs

Adv. Mkhwebane: This covers more than 1000 organs of state, including national, provincial and local government as well as parastatals and other institutions such as universities

Adv. Mkhwebane: In all the cases I will list, I have investigated, reported and taken appropriate remedial action and yet the complainants in the matters concerned are still waiting for implementation of those remedies.

Adv. Mkhwebane: In most cases, those left high and dry are those very people at the grassroots. This is 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.

Adv. Mkhwebane: Increasingly we find ourselves in an untenable situation where we invest hours and resources in delivering our constitutional mandate only for those efforts to come to naught

Adv. Mkhwebane: In most cases, there is implementation and I will provide examples to this end

Adv. Mkhwebane: In other cases the implicated parties disagree with us and proceed to take us on judicial review

Adv. Mkhwebane: Some correctly so, take matters further by interdicting the implementation of the remedial action because they understand that, absent a court decision setting aside the report, there must be implementation

Adv. Mkhwebane: But there is a crop of officials, office bearers and organs of state who neither challenge the reports in court nor implement the remedial action

Adv. Mkhwebane: Despite numerous follow ups from our side, writing letters and even holding meetings with them, they still don’t move, thereby causing the complaints to suffer all over again

Adv. Mkhwebane: What this means is that, in some quarters, my office directives have become inconsequential. This state of affairs renders such a critical constitutional institution ineffective and toothless

Adv. Mkhwebane: You’d expect that since the ConCourt put the issues of the powers of Public Protector beyond doubt 3 years ago, we wouldn’t be grappling with these kind of issues

Adv. Mkhwebane: I will provide the list of these officials, office bearers and organs of state. I wish to highlight just a few

Adv. Mkhwebane: As we speak we have 2 whistleblowers in KZN who are on the run, having fled their homes after several threats were made on their lives. Their crime, is lifting the lid on the maladministration that took place in uMzimkhulu

Adv. Mkhwebane: Last year, I asked the President to take action against the Minister of Police for failure to failing afford the two gentlemen the protection they require. Action is yet to be taken.

Adv. Mkhwebane: There is also the Minister of Defence who has failed to implement the remedial action in the case of one Mr. Babalo Mvithi, a former Lieutenant-Colonel in the South African National Defence Force.

Adv. Mkhwebane: He and his family are without a source of income because of maladministration on the part of the Department of Defence and Military Veterans.

Adv. Mkhwebane: The Military Ombudsman had ruled in favour of the complainant but the department would not implement, Mr. Mvithi to escalate to us. We confirmed the finding of the Ombudsman and took remedial action, all in vain.

Adv. Mkhwebane: Now and again, Mr. Mvithi writes to me, complaining that my office is doing nothing about his plight when in fact we have done all that we could.

Adv. Mkhwebane: In one of his correspondences, he recounted how he can’t even afford sanitary towels for his teenage daughters as a result of what he sees as failure to assist from my office.

Adv. Mkhwebane: The following matter is perhaps one case that best demonstrates the gravity of the problem we have on our hands.

Adv. Mkhwebane: In 2008, Messrs TJ Tshiololi, LJ Rambau and MP Ramamvhale, former members of the erstwhile Venda Pension Fund, approached this office on behalf of their colleagues at the Vhembe Concerned Pensioners.

Adv. Mkhwebane: They complained that the state, in particular the Government Employees Pension Fund (GEPF) and the National Treasury, acted improperly during the privatization of the Venda Pension Fund, resulting in the prejudice of members.

Adv. Mkhwebane: They also alleged that, due to the privatization in question, they were not entitled to full pension benefits in terms of the Government Employees Pension Law (GEP Law).

Adv. Mkhwebane: Following an investigation in 2011, this office made findings in favour of the complainants.

Adv. Mkhwebane: It found, among other things that, the complainants suffered prejudice as they were influenced to privatize their pension benefits but were not properly informed about the consequences of privatization.

Adv. Mkhwebane: Privatisation meant they would forfeit all the benefits of a defined benefit fund such as a spouse’ pension, funeral benefits and orphans’ benefits as well as a medical aid subsidy after retirement.

Adv. Mkhwebane: It was also found that the complainants suffered prejudice when their complaints and problems were ignored by the different government institutions they complained to.

Adv. Mkhwebane: It was further found that the complainants suffered prejudice as they had to apply for old age grants despite having accumulated numerous years of service.

Adv. Mkhwebane: As a remedy, this office directed that the Ministers of Public Service and Administration and Finance appoint a task team to review the implementation of Privatisation Schemes of the former Venda Pension Fund.

Adv. Mkhwebane: The task team was to also consider changes to GEP Law & Rules if required to enable members who participated in privatization schemes the opportunity to repay benefits received and recalculate their pension benefits in terms of rules regulating normal retirement.

Adv. Mkhwebane: GEPF was directed to recalculate the pension benefits for Messrs. Tshiololi and Ramavhale as if they retired with all their years of service as members of the GEPF including VPF & afford them opportunity to repay any benefits they might have received.

Adv. Mkhwebane: This would exclude the amounts repaid by them to the Venda Government.

Adv. Mkhwebane: In the case of Mr. Rambau, the DPSA and Treasury were directed to order a forensic audit of the list of the firsts Privatisation Scheme of the Venda Pension Fund to determine the accuracy of the transferred amounts in respect of each member.

Adv. Mkhwebane: The remedial action was to be finalized within six months of the report, which was signed on 08 November 2011. This did not happen because government cited a number of challenges as impeding implementation.

Adv. Mkhwebane: I then proceeded to issue a special report on the same matter.

Adv. Mkhwebane: The report sought to assist the Treasury to expeditiously implement the old report of November 2011 in pursuit of deliberations held with the former Treasury DG, Mr. Lungisa Fuzile and then Minister of Finance, Mr. Pravin Gordhan.

Adv. Mkhwebane: The report sought to assist the Treasury to expeditiously implement the old report of November 2011 in pursuit of deliberations held with the former Treasury DG, Mr. Lungisa Fuzile and then Minister of Finance, Mr. Pravin Gordhan.

Adv. Mkhwebane: In the report, I confirmed the findings contained in the previous report of November 2011.

Adv. Mkhwebane: I then provided guidance on how to resolve the paucity of records on the side of the state and verify information provided by the complainants relating to their posts, the departments where they were employed, their appointment dates and remuneration details.

Adv. Mkhwebane: It was my hope that the special report would resolve the impasse, thus providing necessary relief to restore the lives and dignity of the complainants and their colleagues.

Adv. Mkhwebane: I highlighted the fact that the maladministration that occurred not only deprived the complainants of a defined benefit, but also constituted a violation of their right to social security in contravention of section 27 of the Constitution.

Adv. Mkhwebane: In addition, I stressed the point that the complainants had already suffered immensely as a result of the maladministration and the long wait for implementation of remedial action.

Adv. Mkhwebane: I pointed out that many of them were penniless, relying on old age grants while a number of them had already passed away while waiting for justice. Today, that remedial action is yet to be implemented.

Adv. Mkhwebane: In December 2018, I received a report from Minister Tito Mboweni, in which he informed me that the Treasury had conducted its own investigation into the matter, which investigation was, according to the Minister, in the spirit of implementing the remedial action.

Adv. Mkhwebane: Firstly, I am very unhappy with this because, to reinvestigate and arrive at your own conclusions is tantamount to second-guessing the Public Protector, something which is inconsistent with the law.

Adv. Mkhwebane: Anyhow, the Treasury’s report arrived at a conclusion that there were no grounds to warrant a payment of compensation to the complainants.

Adv. Mkhwebane: The report went further to say that the complainants should find comfort in the fact that they receive old age grants.

Adv. Mkhwebane: We were informed this morning that the Treasury has now resolved to take these two reports, one issued in 2011 and the one released in 2016, on judicial review.

Adv. Mkhwebane: Again, this means the complainants will have to wait for months or even years on end for justice.

Adv. Mkhwebane: The following are, accordingly, the organs of state and individuals, against whom we made adverse findings and took appropriate remedial action as per the constitution.

Adv. Mkhwebane: Despite repeated instances of writing to them, following up on implementation and, in some cases, holding meetings with them, our pleas have simply fallen on deaf ears.

Adv. Mkhwebane: The parties concerned have neither met the timeframes stipulated in the reports nor fully implemented the remedial action, if at all.

Adv. Mkhwebane: The following are, accordingly, the organs of state and individuals, against whom we made adverse findings and took appropriate remedial action as per the constitution.

Adv. Mkhwebane: They are @CityTshwane @CityofJoburgZA Sedibeng Municipality, Gasegonyana Municipality, Dawid Kruiper Municipality, Ventersdorp Local Municipality, Ngaka Modiri Molema District Municipality, Kagisano-Molopo Local Municipality

Adv. Mkhwebane: Others are National Treasury, Government Pension Administration Agency, CCMA, EC Department of Education, Department of Rural, Environment and Agricultural Development (North West), National Commissioner of Police and South African Police Service

Adv. Mkhwebane: We also have Dept of Higher Education and University of Limpopo, Johannesburg Roads Agency, Nuclear Energy Corporation of South Africa, Tshwane South College Council, South African National Defence Force, Master of the High Court and others.

Adv. Mkhwebane: I would like to remind organs of state of the reality that cooperation with our investigations and compliance with remedial action is not optional.

Adv. Mkhwebane: I would also like to reiterate the point that it is not all organs of state that defy us. Some readily welcome our reports and move swiftly to implement. They understand that we are there to point them to their mistakes so that they can get it right in the future

Adv. Mkhwebane: An example is Gauteng Department of Human Settlements. Recently, when we informed department that it had wronged a group of up to forty-five (45) small business people, who had been contracted to construct low-cost houses in Alexandra Township in the late 1990s.

Adv. Mkhwebane: The department owed them outstanding payments ranging from as little as R400, 00 to as much as R900 000, 00; the department did not send us from pillar to post. It accepted our findings and is in the process of doing right by the people affected

Adv. Mkhwebane: I would like to single out MEC Uhuru Moiloa, who has gone beyond just complying in this case but went further to assure me of his department’s full cooperation with my office in other matters.

Adv. Mkhwebane: There are many other public office-bearers who, like MEC Moiloa, respect this institution and understand that it is not about me but the complainants who look to my office to vindicate their rights.

Adv. Mkhwebane: For instance, this week I met with the Minister Mokonyane and MEC Dhlomo from KwaZulu-Natal, who were extremely helpful and provided valuable information that will assist my investigations.

Adv. Mkhwebane: This is exactly what we wish to see in cases such as that of the Vhembe Concerned Pensioners Group and others that I have mentioned.

Adv. Mkhwebane: We do understand that aggrieved parties have the right to have our findings reviewed in court.

Adv. Mkhwebane: But we urge all those who go down this route to go a step further and secure an order suspending the implementation of the remedial action as did the Premier of the Western Cape in relation to the two reports we have issued with respect to her conduct.

Adv. Mkhwebane: This very is important. The Constitutional Court was very clear. Until there is a decision setting aside the remedial action, there is absolutely no reason the delay implementation.