Public protector Busisiwe Mkhwebane suffers another court blow

Public protector Busisiwe Mkhwebane. File photo.
Public protector Busisiwe Mkhwebane. File photo.
Image: Esa Alexander

Public protector Busisiwe Mkhwebane has suffered another legal blow, with the high court setting aside her 2018 report into the affairs of the Universal Service and Access Agency of South Africa (Usaasa).

Mkhwebane's report, which was thrown out by the North Gauteng High Court last week, stemmed from a probe she conducted into boardroom issues at Usaasa after a complaint from the agency's then CEO, Lumko Mtimde.

Mtimde had complained to Mkhwebane, citing the Protected Disclosures Act, after the agency's board suspended him and instituted disciplinary proceedings against him.

Mtimde and the board had been at loggerheads over the employment of a Usaasa company secretary, which the former CEO argued had been done in violation of the Companies Act and the Public Finance Management Act, among other laws.

Mtimde also wanted Mkhwebane to order the board to halt disciplinary proceedings against him, saying he was challenging the matter in the labour court.

He also alleged that the board had corruptly and unduly interfered in his attempts to set aside what he said was the unlawful and irregular process of manufacturing set-top boxes.

Mkhwebane then wrote to the Usaasa board, saying she had accepted Mtimde’s complaint and instructed it to stop the disciplinary process against him until she had finalised her investigation.

But the board did not agree and proceeded with the hearing.

In her report, Mkhwebane upheld the complaints that Mtimde had raised and found that the board should not have ignored her request to have the disciplinary proceedings halted.

Her report is inaccurate and not reliable, and the remedial action is irrational in that it is not rationally connected to the information before her and the reason given for it.
North Gauteng High Court

However, on Friday, the North Gauteng High Court reviewed and set aside her report, adding a punitive costs order. The court found that the public protector had no powers to stop the disciplinary hearing against Mtimde.

The court ruled that the board had acted “well within their rights to continue with the disciplinary proceedings against the third respondent [Mtimde], and the public protector’s finding that applicants [board] should have halted same is in my view unlawful and ought to be set aside”.

The court also said the public protector’s finding that the appointment of the company secretary was solely the responsibility of Mtimde was irrational, unlawful and should be set aside.

According to the court, the Usaasa board had the final say on the appointment of the company secretary and was therefore well within its rights to appoint and remunerate the company secretary as it saw fit.

The court said the manner in which Mkhwebane had conducted her investigation had not inspired confidence.

“Her report is inaccurate and not reliable, and the remedial action is irrational in that it is not rationally connected to the information before her and the reason given for it,” the court said.

“Following a declaration of invalidity, this court has the power to order just and equitable remedy under section 172(1)(b) of the constitution. In this regard, the report is declared invalid and is reviewed and set aside.”

The court also slammed Mkhwebane for not removing one of her investigators at the request of the board over concerns of bias.

The removal of the investigator, Abongile Madiba, was requested by the board after he had sent an e-mail saying the board members were “bayadelela” (disrespectful in isiZulu).

The court found that there was no reason for Mkhwebane to not remove Madiba from the investigation, as there were perceptions that he had taken interest in the matter and was showing signs of bias.

The court also found that Madiba did not give the board enough time to respond to the allegations against it, therefore violating the right to be heard.

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