Another legal blow for Mkhwebane: Judge blasts public protector over flawed, unlawful report

Public Protector Busisiwe Mkhwebane has suffered yet another legal blow, with her report on Road Traffic Management Corporation (RTMC) boss Makhosini Msibi found not only to be inconsistent with the constitution but also flawed, irrational, unreasonable, unlawful and invalid.

In a judgment delivered by the High Court in Pretoria on Wednesday, Acting Judge Livhuwani Vuma was particularly scathing on Mkhwebane’s failure to hear Msibi’s side of the story before releasing her adverse preliminary findings against him.

“The right of a party to be ‘meaningfully’ heard in administrative actions is an integral part of our democracy to which the public protector has to put a high premium and thus avoid to be seen to exercise her powers arbitrarily outside and/or above her constitutional mandate,” the acting judge concluded.

In September 2019 Mkhwebane’s investigation report found that Julia Manamela was improperly appointed in the Supply Chain Management Unit, Msibi’s bodyguards were paid excessive overtime and lawyers and legal firms were improperly appointed.

The Citizen then reported how the National Trade Union Congress (NTUC) called for Msibi do the honourable thing and step down, or take the public protector’s scathing report against him on review.

Mkhwebane also found that Msibi’s appointment of senior counsels, or advocates, to handle disciplinary processes – which did not require such high levels of expertise – amounted to irregular expenditure and that he improperly approved excessive payments to his bodyguards.

Mkhwebane denied Msibi the right to be heard

But the acting judge scolded the way the public protector conducted the investigation. Vuma said Msibi was denied his right to be heard, especially because the remedial actions were detrimental on his part.

“I am therefore satisfied that her report is flawed, irrational, unreasonable, unlawful and invalid, thus making it liable to be reviewed and set aside on multiple grounds, including on the principle of legality…,” Vuma said in her judgment.

Vuma said the moment Mkhwebane found that the three complaints she found to be meritorious detrimentally implicated Msibi, and that an adverse finding may result from them, she was enjoined to grant him a hearing, which she neglected to do.

Vuma said Mkhwebane’s decision not to hear Msibi during the course of her investigation of the substantiated three complaints, and also before her preliminary findings were released, was based on her incorrect application of the law.

“It is trite that the power which the public protector enjoys is subject to the constitution and in this instance, her failure to comply with her own Act, that is section 7(9)(a) and even misinterpreting its purpose, renders such conduct both unconstitutional and irrational,” the acting judge said.

Learning curve for Mkhwebane

Mkhwebane’s spokesperson Oupa Segalwe explained that at the time of the investigation, the public protector took her cue from section 7(9) of the Public Protector Act.

He said her office interpreted, at the time, the section to mean the office was only compelled to furnish implicated parties with the contemplated findings only and not the remedial action.

He said this was for the purpose of soliciting the affected party’s comments or representations.

“[Mkhwebane] now knows, following a recent Constitutional Court decision, that respondents must also be heard on the potential remedial action. Unfortunately, at the time of concluding the investigation in question, the Constitutional Court had yet to decide on the issue. Since that ruling, the PPSA solicits comments from the implicated parties on both the envisaged findings and remedial action,” he added.

– siphom@citizen.co.za

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