Human Settlements Minister Mmamoloko Kubayi.
Human Settlements Minister Mmamoloko Kubayi has defended her appointment of Property Practitioners Regulatory Authority (PPRA) chairperson Steve Ngubeni, who has a history of financial misconduct allegations amounting to millions of rand.
Kubayi launched the PPRA in February to succeed regulatory body the Estate Agency Affairs Board (EAAB). She said the new body’s main functions would include regulating the affairs of all property practitioners; to allow for transformation in the property sector and provide for consumer protection. In contrast to the EAAB, the PPRA would have more reaching power – including inspections without notice – and more serious consequences for non-compliance, the minister said.
Kubayi’s support for Ngubeni flies in the face of the minister’s assertion of running a “stable and well-functioning regulatory authority”, which she expressed during her speech at the launch of the PPRA.
Ngubeni, chairperson of the PPRA, was fired from the National Youth Development Agency (NYDA) as chief executive in 2013 after it found him to have been “guilty of financial misconduct” relating to an irregular R2.5-million payment that the agency paid out for the August 2013 Nelson Mandela Sports and Culture Day concert in Gauteng.
But the minister, in an interview with the Mail & Guardian this week, dismissed these allegations against Ngubeni, saying it was almost 10 years since he had been fired and there was nothing improper about appointing him now.
Kubayi appointed Ngubeni last November as the PPRA’s chairperson for a five-year period, despite a stipulation in Chapter 2 of the Property Practitioners Regulatory Authority Act which prohibiting the appointment of anyone who has previously been dismissed from a position of trust due to wrongdoing.
The act came into force in February after being signed off by President Cyril Ramaphosa.
In 2020, Ngubeni left the Gauteng Gambling Board as its chief executive under another financial misconduct cloud after the organisation’s former chief financial officer, Kgaugelo Mahlaba, alleged in an affidavit filed in the Johannesburg labour court that Ngubeni had used the gambling board’s funds to repay a R100 000 loan he owed Mahlaba.
These revelations against Ngubeni come in the wake of PPRA chief executive Mamodupi Mohlala Mulaudzi’s urgent high court application challenging her “unlawful and unconstitutional” 28 March suspension pending an investigation into alleged irregular appointments since Ngobeni became chief executive in February 2019, as well as alleged unlawful pension fund deductions.
In her founding affidavit, Mohlala Mulaudzi said there was “an ulterior purpose” for her suspension, alleging it had been motivated by what she called her resistance to Ngubeni’s “endeavours to circumvent procedure and policy” by allegedly instructing Mohlala Mulaudzi to remove certain service providers in favour – Mulaudzi claimed – of companies chosen by the chairperson.
Bad loans
In his affidavit, which the M&G accessed from the case file at the labour court, Mahlaba said he had given Ngubeni a R100 000 loan in November 2018, and the latter had promised to pay the money back two months later.
In May 2019, after failing to make the repayment in January, Mahlaba said Ngubeni informed him that it had now been made.
However, Mahlaba noticed from bank records attached in his court application, that the payment to him had been made by Intsika Yo Sizo, a non-profit company which had been issued funding amounting to R450 000 by the gambling board.”
Mahlaba added that when he blew the whistle on Ngubeni, the latter “unlawfully” charged him with misconduct and wanted to begin a disciplinary process against him.
“It is further my belief that I suffered an occupational detriment in the form of the disciplinary proceedings as a direct link to the protected disclosures [whistle blowing] that I made,” reads Mahlaba’s affidavit.
According to the case file, the labour court granted an interdict in February 2020 against any disciplinary proceedings on Mahlaba. In November of that year, the case file notes that Mahlaba and Ngubeni had “settled the dispute between them and have recorded the terms and conditions of the settlement by virtue of a settlement agreement”.
Nontokozo Ndlovu from Phungo Incorporated, the law firm that represented Mahlaba, did not respond to questions of what was contained in the settlement agreement, and whether Mahlaba had eventually accepted the R100 000 repayment that he had accused Ngubeni of using the Gauteng Gambling Board’s funds, to make.
“We confirm that we have not received a mandate from our client to re-open this [case] file and, as such, are unable to assist with your query. In any event, the parties herein are bound to abide [by the] terms of the settlement of this matter,” Ndlovu said, without revealing what the agreement entailed.
She was responding on Mahlaba’s behalf.
Kubayi backs Ngubeni
Asked why she ignored section 2 of the PPRA Act, which explicitly forbids the appointment of anyone dismissed from a position of trust for misconduct, Kubayi said that section of the act was ambiguous, and she relied on other legislation to appoint Ngubeni.
The minister did not reveal which legislation she used to appoint Ngubeni, but said the PPRA Act was not clear on time lapses for the prohibition of appointments, necessitating her to consult other laws to appoint people to public entities.
“For example, let us take a person who [has] a criminal record; it [the law] would say either the criminal record has to be expunged…if it’s older than five years and all those things. So, those laws apply – that is why I’m asking how long was that [since Ngobeni’s NYDA expulsion].
“Because you have got to be able to go to other laws if the primary act here is silent to that [statutes of limitations],” Kubayi emphasised.
“If he was an insolvent individual, he would not have even received his master’s [degree] in law. In terms of [Ngobeni leaving] the gambling board; I have a document of their parting, which [showed] that he was not dismissed. In terms of our due diligence and our work, there is nothing that stops Steven – or disqualifies Steven – from being appointed as a board chairperson,” she added.
In Mohlala Mulaudzi’s application, she wrote in her affidavit that Ngubeni had tried to influence service providers for the compilation of the PPRA’s annual performance and strategic plans, saying Ngubeni had “verbally informed” her that “he would make recommendations of who should be appointed instead”.
Ngubeni submitted the names of companies he wanted appointed for the rendering of the strategic plan contract, Mohlala added in her affidavit.
It has also emerged from the suspended chief executive that Ngubeni chairs the pensions sub-committee despite section 14 (2) of the PPRA Act forbidding the board chairperson from serving on any other board committee.
But Kubayi expressed confidence in the PPRA board – referring to it as “technically sound” – and said she would oppose Mohlala Mulaudzi’s “absurd case” against the ministry and the board.
“I have just approved their annual performance plan, which clearly shows that this is a board that has a vision – willing to work, capable [and] technical. There are glitches towards stability,” the minister said.
“Always, when there is change, there are, sometimes, those who resist change. But one thing that I am determined about is that this portfolio performs better than where it has been, including [the] PPRA.”
[/membership]