In a development that raises further concern over the conduct of Public Protector Lawrence Mushwana, the Mail & Guardian has established that Mushwana personally intervened to remove a politically sensitive investigation from his Cape Town office.
Mushwana’s subsequent report declined to investigate most allegations and took others no further.
The local office had been probing complaints by Democratic Alliance councillor Belinda Walker about the abuse of tender procedures at the Cape Town Metro.
On about May 19 this year, Mushwana arrived at the Cape Town Office of the Public Protector and removed the Walker files, allegedly without prior notice to, or consultation with, the head of the office, advocate Gary Pienaar.
Pienaar was out of the office at the time on another investigation.
Mushwana’s office has responded that Pienaar himself had requested guidance on the investigation and the case investigator, Alfred Lose, was aware well in advance of the decision to take the files. There was nothing sinister about the intervention, his office said.
Neither Pienaar nor Lose were prepared to comment, citing rules that forbid them from talking to the media.
Walker told the M&G that when Pienaar reported the intervention to her as the complainant, he had clearly not been expecting such a step.
The files were removed after a meeting between Mushwana and Cape Town mayor Nomaindia Mfeketo on May 5.
Mushwana’s office declined to give details about the meeting, but said it had been mandated by a ”think tank” held by the public protector in March to which Pienaar had been party.
However, the minutes of the think-tank meeting, responding to the request for guidance from Pienaar, make no mention of Mushwana himself intervening. They merely state that a meeting should be arranged with the mayor of Cape Town and a report be drafted based on the outcome.
Walker said Mushwana’s involvement appeared to have been sparked by accusations by African National Congress councillors that she, Walker, was abusing the public protector’s office by submitting numerous complaints.
Mushwana’s report appears to endorse those accusations, she suggests. Walker said she was ”gobsmacked” by the way in which her detailed complaints had been dismissed or simply referred back to the council without further investigation.
In the report, Mushwana refers, apparently sarcastically, to the fact that the public protector ”does not provide legal advice to individuals or, for that matter, political parties”.
The report, which Mushwana personally presented to Mfeketo last month, adds that complainants should exhaust ”internal procedures” before approaching his office.
Asked what procedures Walker should have used, Mushwana’s office suggested she could have launched a high court review, or lodged a complaint with the provincial minister for local government in the Western Cape, before coming to him.
One Cape Town lawyer, who spoke on condition of anonymity, said the report appeared to regard councillors as voting fodder, with minimal rights to assistance from the protector in exercising an oversight role.
Walker had raised concerns about allegations of systematic abuse of the tender process at the municipality and cited several examples, requesting the protector to investigate and provide his views.
Mushwana declined to investigate most of the matters, saying that he ”does not have authority to act as a legal adviser”.
This finding appears to contradict enabling provisions of the Public Protector Act and the fact that the protector has in the past expressed legal opinions, such as in the case of his report on Jacob Zuma’s complaint against former national director of public prosecutions Bulelani Ngcuka.
Among the tenders questioned by Walker was the award of a four-year R7-million per annum contract for cellular services that was awarded to Cell C, despite the fact that the company scored second in the formal rating of bids.
In her letter of complaint, Walker alleged that ”very strong pressure was brought to bear on the committee by the ANC chairperson and council members who were determined that a decision favouring Cell C should be taken, although there were no compelling reasons why this company should be awarded the contract”.
She noted the city’s forensic and investigative audit department conducted a forensic investigation of the decision taken to award the contract to Cell C, but she had been refused a copy of its report.
Mushwana declined to investigate.
Another tender queried by Walker was for general road repairs. In her letter to the protector, she said the recommendations of the officials who adjudicated the tenders had been changed in contravention of procurement policy and without reasons being given.
She also noted an allegation that, in one category, all four companies substituted by council for those recommended by officials were owned by relatives of the same family.
Mushwana declined to investigate.
Other matters raised by Walker included the awarding of road contracts worth R25-million to a company, BTH, which council officials had recommended be disqualified because of its lack of financial and technical capacity.
The city’s own internal forensic audit found that councillor Daniel Landingwe interfered to help overturn BTH’s exclusion.
Mushwana made no independent finding on this issue, only recommending an investigation by the council speaker into possible contraventions of the code of conduct for councillors by Landingwe.
He failed to investigate the probity of the council in awarding a contract to a non-compliant bidder, despite the view expressed by an internal audit report that: ”No city structure should have considered such a tender.”
”The report is wholly inadequate. It doesn’t answer the questions, and it is clearly protecting the executive,” Walker told the M&G.
Mushwana’s office defended his findings, saying the report of the head-office investigation was adopted at a meeting on June 30 at which investigator Lose was present, acting in the absence of Pienaar.