Lawrence Mushwana has ended his last week at the helm of the public protector’s office in dramatic style, suspending his chief executive officer, Themba Mthethwa, just three days before moving on to the South African Human Rights Commission (SAHRC).
Mushwana accused Mthethwa of misconduct for not disclosing that he had been investigated by his previous employer — the South African Local Government Association (Salga) — for alleged tender irregularities and for failing to disclose ”material facts relating to his medical condition” that could have affected his appointment to the protector’s office.
Mushwana, who recently told the Mail & Guardian that chief executives at some Chapter 9 institutions had excessive powers, has been accused of ruling the protector’s office with an iron fist. He is to become a full-time commissioner at the SAHRC and is tipped to be its new chairperson.
Insiders at the protector’s office see Mthethwa’s suspension as Mushwana’s way of preparing for Shirley Thoke, who is allegedly very close to him, to take over Mthethwa’s position. Thoke, acting chief executive before Mthethwa’s appointment, was reappointed in an acting capacity on Wednesday.
Mushwana refused to comment on Mthethwa’s suspension, saying the matter was part of a disciplinary process and sub judice.
Kgalalelo Masibi, a spokesperson for Mushwana’s office, rejected the allegations of nepotism: ”This speculation [about Thoke] is not new and has been part of a vendetta and smear campaign to damage advocate Mushwana’s name. It is rejected with the contempt it deserves,” Masibi said.
Insiders said the ground for Mthethwa’s suspension was an effective admission by Mushwana that he failed to check his background before appointing him.
But Mushwana said Mthethwa was ”still on probation” and had not been permanently appointed.
The M&G has established that Mthethwa’s formal employment contract was concluded on March 30 this year. His probation was later extended twice – to eight months, then 12 months — because of a complaint by a member of the public about his Salga woes.
Mthethwa will challenge his suspension in court. His attorney, Gilbert Ngoepe, said his client had declared the Salga investigation during a job interview and that his suspension had been lifted after Salga in KwaZulu-Natal decided the disciplinary action was unlawful.
Ngoepe said Mthethwa’s temporary illness — work-related stress documented in a sick note while he was working for Salga — had nothing to do with his performance. ”Our client had fully recuperated when he attended the interview,” he said.
He said Mushwana had trampled on Mthethwa’s rights by mentioning in a communiqué to staff that the suspended chief executive had not disclosed a medical condition.
The incoming public protector, Thulisile Madonsela, will have the final say on how to proceed with the case, said Masibi, as ”an appointment to such a high position could not be made just days before she assumes her duties”.
Raynauld Russon, a former chief executive in the protector’s office, was suspended before the end of his first year and fired in May last year.
In an interview with the M&G Mushwana listed one of his priorities as a push for an amendment to the Human Rights Commission Act to clearly define the roles of commissioners and the chief executive.
”As long as you don’t have an executive authority in any institution, then you have problems. The chief executive must be subjected to an executive authority,” he said.