Mkhwebane closes several investigations, but still no Vrede Dairy report

Advocate Busisiwe Mkhwebane has closed an investigation into whether Western Cape Western Cape MEC for Health, Nomafrench Mbombo used her position to irregularly benefit from sponsorships and benefits.

The Public Protector closed the case, citing Report 143 of 2019/20 which found that Mbombo was not in violation of the Executive Ethics Code, after a complaint lodged by Member of the Provincial Legislature Khayalethu Elvis Magaxa. He alleged that Mbombo had received benefits and/or sponsorships on or around 6 September 2016 during special birthday celebrations in her honour.

Magaxa also alleged that the MEC failed to act in good faith and in the best interests of good governance by accepting gifts and failing to disclose them.

Mkhwebane, however, found otherwise.

“I concluded that the MEC did not receive any benefit, gift or sponsorship as contemplated in the Executive Ethics Code for or in respect of the function that was held at the Radisson Blue Hotel in Cape Town on 10 September 2016,” said Mkhwebane during a media briefing updating the public on the status of cases filed with her office during the first quarter of 2020.

The allegations were therefore found to be unsubstantiated, leading to the closure of the investigation.

This case is one of many closed by Mkhwebane’s office for similar reasons or due to the fact that “the issues were dealt with in other forums and thus have been overtaken by events,” as explained by Mkhwebane.

Conspicuous by its absence though, was the case involving the Vrede Dairy farm in the Free State.

At a media briefing in January, Mkhwebane said her new investigation into the Vrede Dairy Farm project was at an advanced stage and that she expected to have it wrapped up by the end of March.

The 2018 report emanating from the public protector’s first investigation into allegations that hundreds of millions of Rand in public funds intended for emerging black farmers in Vrede had instead wound up being channelled to the Guptas, was widely considered a “whitewash”. Mkhwebane was criticised for not having interviewed some of the high-ranking politicians who were implicated in the scandal.

The Democratic Alliance (DA), together with the Council for the Advancement of the South African Constitution (Casac), took the report on review in the Pretoria High Court where Judge Ronel Tolmay last year declared it unconstitutional and invalid, and set it aside.

Tolmay found Mkhwebane had failed in her duties and she later also slapped her with a personal costs order for a portion of the legal fees incurred by the DA and Casac.

The public protector subsequently launched a new investigation, which was initially expected to be completed by last August.

Among some of the other cases closed are:

• The investigation into allegations of abuse of power on the part of then Executive Mayor of the City of Tshwane Metropolitan Municipality, Kgosientsho Ramokgopa, and the erstwhile City Manager Jason Ngobeni with regards to the disciplinary process followed against former Chief Financial Officer at the City, Mr. Andile Dyakala (Report 132 of 2019/20);
• The investigation into allegations of procedural irregularities and victimisation by the City of Tshwane Metropolitan Municipality against Mr. Selby Bokaba (Report 142 of 2019/20). She found that the City of Tshwane acted within the legal prescriptions;
• The investigation into allegations that the former Minister of Agriculture, Forestry and Fisheries, Mr. Senzeni Zokwana misled and made misrepresentations to Parliament when he replied in writing to a 25 June 2018 Parliamentary Question about the removal of abalone from departmental stores without following proper procedures in violation of the Executive Ethic Code and the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (Report 137 of 2019/20);
• The investigation into allegations of maladministration and improper conduct in connection with a Master Service Agreement entered into between Eskom Holdings SOC Limited and McKinsey Company Incorporated as well as payments made to Trillian Capital and Partners (Pty) LTD (Report 139 of 2019/20). The matter has also been referred to the Commission of Inquiry into State Capture. In addition, the High Court has declared the decision to negotiate and conclude the “Master Service Agreement” between Eskom and McKinsey as well as payments made by Eskom to Trillian unlawful and invalid;
• The investigation into allegations of maladministration, irregular procurement procedures and nepotism in the implementation of drought relief interventions by the Free State Department of Rural Development and Land Reform (Report 151 of 2019/20);
• The investigation into allegations of failure by the Thembisile Hani Local Municipality in Mpumalanga to seek approval from the Manala Mabhoko Traditional Council for the construction of Phola Mall (Report 154 of 2019/20);
• The investigation into allegations of failure/ undue delay and maladministration by various departments to properly investigate/and or attend to complaints and subsequent appeals lodged by Mr A Langa on behalf of the Vaaltyn Community against Ivanplats Resources (Pty) Ltd for the alleged unlawful mining (Report 104 of 2019/20).
• The investigation into allegations of irregular and unlawful transfer of Road Traffic Inspectors from the employ of the Cross Border Road Transport Agency (CBRTA) to the Road Traffic Management Corporation (RTMC) (Report 145 of 2019/20);
• The investigation into allegations of improper conduct, abuse of power and/or maladministration during the investigation of Mr MJ Makwakwa’s financial affairs by the Financial Intelligence Centre and the South African Revenue Services (Report 107 of 2019/20);
• The investigation into allegations that there was no proper process followed in respect of an application for an Environmental Authorization Certificate issued in respect of the proposed construction of the Johannesburg East Electricity Supply Strengthening Project, in the Mpumalanga and Gauteng provinces (Report 126 of 2019/20);
• The investigation into allegations of maladministration, tender irregularities as well as fruitless and wasteful expenditure with regards to the procurement of a service provider to design and develop an integrated website for the Free State Provincial Government (Report 128 of 2019/20); and
• The investigation into allegations of maladministration, corruption and entrenchment of monopolies in the 25-year-long contract between Transnet and Anglo subsidiary, Kumba (Pty) Ltd. The contract was allegedly signed by Ms. Maria Ramos in 2005 (Report 124 of 2019/20). All the allegations contained in the complaint were unsubstantiated, hence the closure.

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