Public Protector Advocate Thuli Madonsela on Friday released three investigation reports on alleged improper conduct and maladministration by various organs of state. One deals with alleged administrative injustice against an individual while the two deal with conduct failure relating to employment irregularities.
The report titled Unsettled Business deals with alleged administrative injustice by the Commission on Gender Equality while those titled Saved by the Notice and Out of the Blue deal with alleged employment irregularities by Senqu Municipality in the Eastern Cape and George Municipality in the Western Cape, respectively.
Unsettled Business: Commission on Gender Equality (CGE)
The report titled Unsettled Business deals with allegations that the CGE unfairly excluded its former Chief Executive Officer, Ms Chana Pilane-Majake, when the institution paid arrear provident fund contributions to other Senior Management Service (SMS) employees and to pay her cellular telephone benefits for the period she was on precautionary suspension.
The Public Protector considered whether Ms Pilane-Majake was unfairly left out by the CGE from the payment of arrears provident fund contribution it made towards other SMS employees; and whether the CGE unfairly denied or failed to pay her cellular phone and 3G allowances for the period she was on precautionary suspension for work done for it; and if so, whether she was prejudiced by such conduct.
Regarding the alleged unfair exclusion from provident fund employer contributions, the Public Protector found that the claim was not substantiated as evidence from CGE payroll records showed that only MMS members received the arrear provident fund payment.
“If SMS employees were entitled to be paid arrear contributions to the provident fund,” said the Public Protector, “[Ms Pilane-Majake] would have been entitled to such payment regardless of her being on precautionary suspension at the time of her having opted for an exit package that failed to take such a matter into account.”
The complaint over the payment of cellular phone and 3G allowances was found to have been substantiated. The Public Protector found that Ms Pilane-Majake surrendered her CGE cellular phone handset and 3G card during her precautionary suspension. The communication she had to address to the CGE during this period, including queries from the Harries Commission lawyers established to adjudicate her matter, were dealt with through her private telephone and internet services.
The Public Protector found that the CGE had to bear the cost of Ms Pilane-Majake’s telephone and internet services during that period in terms of its Principles, Policies, Rules and Regulations for its staff as Ms Pilane-Majake remained the institution’s employee until the termination of her employment and evidence showed that she incurred CGE-related expenses. She found that the CGE’s failure to assess and pay the invoices submitted by Ms Pilane-Majake constituted improper conduct and maladministration as Ms Pilane-Majake incurred expenses relating to the use of her private cellular phone and internet usage for official purposes while on precautionary suspension.
“The complainant suffered prejudice in that she was left to personally bear the cost of CGE-related communication expenses incurred through the use of her private cellular phone and internet services for official purposes while on precautionary suspension,” the Public Protector said, adding that Ms Pilane-Majake suffered an administrative injustice.
She directed the CGE to reimburse Ms Pilane-Majake for the use of her private cellular phone and internet services, which reimbursement has to be paid with interest.
Saved by the Notice: Senqu Municipality, Eastern Cape
The report titled Saved by the Notice follows an investigation into alleged irregular appointment and extension of employment contract for the Chief Financial Officer (CFO), Mr Christopher Rudolph Venter, in Senqu Municipality and his alleged undue influence in the appointment of his wife by SEBATA (Pty) Ltd, a service provider engaged by the municipality for the Financial Management System and Support.
The matter was brought to the attention of the Public Protector by the Sterkspruit Ratepayers Association and Sterkspruit Civic Association, who represented the community of Sterkspruit.
In the main, the complaint was that the appointment of Mr Venter as CFO was irregular as he did not possess the necessary qualifications and skills to fulfill the requirements of the position and that the appointment of his wife was unduly included by the CFO and that she was performing the duties of the CFO.
The Public Protector found that the allegation that Mr Venter did not have the required qualifications to be appointed to the position of CFO at the time when he was appointed in 2002 was substantiated as he only passed Standard 10 in 1981 and did not possess the appropriate tertiary qualification as required by the advertisement for the position of Financial Manager then.
She further found that Mr Venter had not acquired the appropriate tertiary qualification for the position of CFO when his contract of employment was renewed by the Municipality in 2007. She found further that he had also not acquired NQF level 6 tertiary qualifications prescribed by the Guideline for Municipal Competency Levels for the position of CFO when his contract of employment was renewed in 2012.
Although Mr Venter has since obtained the required higher education qualification of a Certificate in Municipal Financial Management on 5 June 2014, his appointment to the position of Financial Manager in 2002 without the required qualifications and the renewal of his employment contract in 2007 and 2012 without the required qualifications constitute improper conduct and maladministration, the Public Protector found.
On whether the Municipality irregularly appointed Mr Venter as CFO in contravention of relevant laws, the Public Protector found that the allegation was substantiated as the Municipality failed to comply with the requirements of its own advertisement for the position of Financial Manager when it appointed him in 2002. The Municipality further failed to conclude separate performance agreements with Mr Venter when he was appointed Financial Manager in 2002 and when his contract of employment as CFO was renewed in 2007 and 2012. The municipality further failed to advertise the position of CFO when it became vacant in 2007 and in 2012, when it renewed the employment contract of Mr Venter as CFO.
Regarding whether there was undue influence by the CFO in the appointment of his wife by SEBATA, the allegation could not be substantiated.
As part of remedial action, the Public Protector directed that the Municipal Manager of the Senqu Municipality ensures that a separate performance agreement is concluded with the CFO; the Senqu Municipal Council ensures that the position of CFO is advertised when the current employment contract of Mr Venter terminates; and that the MEC for Local Government and Traditional Affairs in the Eastern Cape investigates the reasons behind the violation of the Municipal Systems Act 32 of 2000 by the Senqu Municipality and officials responsible and take action to ensure that the situation is not repeated.
Out of the Blue: George Municipality, Western Cape
The Public Protector investigated allegations of maladministration against the Municipal Manager of George Municipality, Mr Trevor Botha, relating to the appointment of the Area Coordinator in Touwsranten. The complaint was filed by a representative of the Ward 4 Committee in Touwsranten.
Issues identified for investigation were whether the procedure followed in the appointment of the Area Coordinator in Touwsranten was improper and constituted maladministration; whether the academic qualifications of the incumbent met the requirements of the post and if so, whether the appointment was improper and constituted maladministration. The Public Protector also looked into whether there was any political interference by the Executive Mayor’s office and if so, whether this was improper and constitutes maladministration.
In a report titled Out of the Blue, the Public Protector found that the appointment of the Area Coordinator in Touwsranten was a breach of the George Municipal Appointment Policy in that the Municipal Manager failed to adhere to several provisions thereof, making the appointment unlawful, amounting to improper conduct and constituting maladministration.
Public Protector Madonsela found that the incumbent, whose highest level of education is Grade 10, did not meet the essential requirements of the position, which is the relevant B-Tech Diploma in Municipal Management. No evidence was presented to show that the incumbent met the criteria set out under section 20(3) o the Employment Equity Act 55 of 1998 and as such the incumbent’s appointment by Mr Botha was unlawful, amounted to improper conduct and constituted maladministration.
“Although there was no evidence of interference from the Mayor’s office, the manner of the appointment lends itself to an investigation into the nature of the relationship that existed between the incumbent and all the various people involved in his appointment,” the Public Protector said.
“There is the possibility of the existence of an improper or possibly corrupt relationship between the incumbent and one of the people involved in the process of his appointment. This is especially true of the Municipal Manager who provided no plausible explanation as to why the position was offered to the incumbent who was not only unqualified for it but had not solicited for the position.”
Regarding appropriate remedial action, the Public Protector directed the George Municipal Council not to renew the Area Coordinator in Touwsranten’s monthly contract in order not to perpetuate the illegality of the appointment of the current incumbent.
She also called upon the Council to also ensure that the vacancy of Area Coordinator in Touwsranten is permanently filled by following the appropriate Municipal Appointment Policy and consider taking disciplinary action against the Municipal Manager for failure to adhere to the prescribed George Municipality Appointment Policy in the appointment of the Area Coordinator in Touwsranten.
The Public Protector will release a report titled Law and Justice on Sunday, 14 December 2014. The report deals with alleged administrative injustice by the South African Broadcasting Corporation (SABC) and various other organs of state. The Public Protector will further hold a final media briefing for the year 2014 on 18 December 2014, where more investigation reports will be released. Details will follow on Monday 15 December 2015.
For more information:
Oupa Segalwe
Acting Spokesperson: Public Protector South Africa
Cell: 072 264 3273
Tel: 012 366 7035
Email: oupas@pprotect.org
