In a new twist in the saga of the former home affairs director general Billy Masethla — now an adviser in the presidency — the auditor general has found that the extension of his contract for a year to June 20 was, indeed, invalid.
The report places a huge question mark over the legality of literally thousands of administrative actions Masetlha performed as director general and accounting officer of the department. It officially confirms a view long held by Minister of Home Affairs Mangosuthu Buthelezi.
Buthelezi took the unprecedented step in October last year of presenting a list of 64 complaints about his then director general to the home affairs portfolio committee of the National Assembly.
In June this year — after accusing him of insubordination — Buthelezi also accused Masethla, at the end of his “extended” term, of creating and then filling 153 posts without ministerial approval.
The shock report provided to the Mail & Guardian ahead of its tabling in Parliament notes that the expenditure incurred by the director general of the department while his appointment “was not in accordance with … legislative requirements” amounted to about R839-million for the period June 21 2001 to March 31 2002 and a further R332-million for the period April 1 2002 to June 20 2002.
While it stops short of defining the spending as irregular — defined in terms of the Public Finance Management Act (PFMA) as “expenditure other than unauthorised expenditure incurred in contravention of or not in accordance with a requirement of any applicable legislation” — the report states that based on the fact that the employment contract of the director general was not in accordance with the Public Service Act and the PFMA and that he incurred expenditure on behalf of the department while not validly appointed, the expenditure incurred was not in accordance with the requirements of the two pieces of legislation.
“However, there is some uncertainty as to whether the expenditure so incurred may be regarded as irregular expenditure as defined in the PFMA.”
According to departmental sources, it also could cast doubt on the legality of thousands of actions taken by the department including the provision of identity documents as well as deportation notices during this time. The report, signed by Auditor General Shauket Fakie, noted that the former director general was deployed from the South African Secret Services to the Department of Home Affairs on December 1 1999 “and continued to serve in that position in terms of his original five-year appointment”.
In terms of this original appointment at the secret services, his term of office expired on June 20 2001.
“During June 2001, the Cabinet resolved to extend the director general’s term of office for a further 12 months,” the report notes.
The auditor general’s report stated that it was the opinion of the former director general that he was properly appointed to act as head of department based on the Cabinet resolution and correspondence from the Department of Public Service and Administration “that informed him that he was so appointed for the extended period”.
However, the report notes, in terms of Section 12(2)(c) of the Public Service Act 1994 (Act 103 of 1994) as amended any extension of his term of office subsequent to July 1 1999 was subject to the conclusion of a prescribed contract.
Acting in terms of this section, Buthelezi signed a copy of the prescribed contract and forwarded it to the director general for his signature. Fakie’s report says: “However, the employment contract was never signed by the director general.”
The report says in the absence of the signature “the extension of the term of office of the director general for a further 12 months was not valid”.
It says further: “… the director general was not properly appointed as director general of the Department of Home Affairs for the period of June 21 2001 to June 20 2002 and was not properly authorised to carry out the duties of a director general.”
Furthermore, the director general “could therefore not fulfill the role of accounting officer of the department. As prescribed by Section 36(2)(a)” of the PFMAof 1999.
The PFMA required the employment contract of the accounting officer to be in writing “which was therefore not complied with”. The state law advisers were consulted on the matter and responded as follows: “We cannot come to any other conclusion than that the legislature intended the prescribed contract as preemptory for a valid extension of office.”
The report noted that the home affairs portfolio committee of Parliament had recommended that the Public Service Commission investigate the issue as they were the proper authority to do so.
“Upon following up this matter with the Public Service Commission they indicated that the former director general’s employment contract was successfully resolved at ministerial level. However, no evidence was furnished as to how this matter was resolved.”