Media statement regarding Public Protector's report
The MEC for Finance in KwaZulu-Natal has received a copy of the Public Protector's report in which she makes certain findings concerning the former MEC and the Head of Provincial Treasury.
It is regrettable that the MEC first learnt of the publication of the report when the item about the report appeared on television news. It is unfortunate that the Public Protector (an office created by the Constitution) saw fit to publicly criticize the MEC and the Treasury (entities also created by the Constitution) without the courtesy of providing the report to them prior to addressing the media.
The MEC and the Provincial Treasury regard the report and the proposed findings as defective.
In essence, the Public Protector found that the complainant made a protected disclosure, and as a result thereof subjected the complainant to an occupational detriment leading ultimately to her suspension and dismissal. The Public Protector states that the dismissal was irrational, unreasonable and unfair. Thereafter the Public Protector directs certain remedial action be implemented within thirty days of the date of the report.
The report is defective for the following reasons:
- It is not correct that the complainant made a protected disclosure.The disclosures had already been made and were the subject of an investigation already underway prior to the complainant's employment by Provincial Treasury.
- The complainant was not dismissed due to whistle blowing activities. She was dismissed during her probationary period in compliance with the Public Service Act. She appealed against her dismissal, and her appeal was dismissed.
- The dismissal and the appeal finding are administrative actions, and as such are legally binding and cannot simply be overlooked or ignored or disregarded by the Department. Until they are set aside by a court they remain effective
- To the extent that the fairness of her dismissal is in dispute then that dispute should be decided by the Labour Court, who has the jurisdiction to deal with such matters. There are in fact proceedings pending in the Labour Court arising from the complainant's dismissal, and those proceedings would allow the parties to lead evidence and test the other party's evidence. The MEC and Treasury would abide by those finalised proceedings.
- What the Public Protector has done is to deal with matters that fall within the sole jurisdiction of the Labour Court, without giving Treasury the opportunity to be heard and to lead evidence. In doing, so she has exceeded her powers. In doing, so the Public Protector has opened the door for disgruntled employees to by-pass legal procedures specifically created to allow them to protect their rights, and to approach the Public Protector directly, and in doing, so denying the employer the right to be heard.
- The process followed by the Public Protector is not fair in that material witnesses were not interviewed and they were not offered the opportunity to be heard before findings were made concerning their actions.
For these reasons the MEC and Provincial Treasury will not implement the remedial action directed by the Public Protector. In accordance with legal precedent the MEC and Treasury will apply to the High Court to review and set aside the decision of the Public Protector.
For clarity, contact Musa Cebisa:
Cell: 071 6878 777
