/ 30 October 2009

Shock R7m payout for Mushwana

Controversial departing public protector Lawrence Mushwana has received a golden handshake of nearly R7-million, raising a storm about his ­entitlement to it.

He is also suspected of taking punitive action against the chief executive of the public protector’s office, Themba Mthethwa, for questioning the payout.

Mushwana suspended Mthethwa and the contested R6.8-million ­payout was deposited into Mushwana’s account 48 hours later.

The payout includes R90 000 in lieu of leave, which is specifically prohibited in terms of Mushwana’s conditions of employment.

Government failed this week to explain the conditions of service that permitted this payment.
Clause 6.4 of Mushwana’s service conditions state that no leave shall be accumulative and ‘no salary allowance shall be claimed in respect of leave which could have been taken, but was not utilised”.

On his way out, Mushwana also took a state vehicle, a BMW X5, that he has been using for official duties, forcing the protector’s office to hire a car for the new public protector, Thulisile Madonsela, before buying a new one.

Mushwana is entitled by law to keep the car, provided he pays a ­certain amount for it determined by the state. He has yet to cough up.

Mushwana’s gratuity was recorded in the public protector’s annual report, which was approved by ­Parliament in September. The office of the public protector, Parliament and the presidency each referred the Mail & Guardian‘s questions to the other.

Department of justice spokes­person Tlali Tlali said the department did not have information about Mushwana’s gratuity, as the protector’s office is an independent constitutional institution that is accountable to the National ­Assembly.

But Tlali said Mushwana was ­entitled to receive the gratuity because his employment conditions were different to those of other heads of Chapter 9 institutions.

Although these heads are not paid gratuities at the end of their terms, Tlali said, ‘it cannot be automatic that remuneration and conditions of service for all Chapter 9 institutions are the same, as each institution is provided for by its enabling ­legislation”.

Chapter 9 institutions promote and defend democracy, they are accountable to Parliament and their heads serve non-renewable seven-year terms.

The chairperson of the South African Human Rights Commission (SAHRC), also a Chapter 9 institution, earns a little less than a government deputy director general — an annual salary of R889 000.

The public protector is appointed on the same level as a judge and Mushwana earned R1,5-million in that post.

The spokesperson for the protector’s office, Kgalalelo Masibi, told the M&G that the office of the deputy justice minister, Andries Nel, issued the appointment letters of public protectors and was therefore in the best position to answer questions about the gratuity.

This week Mushwana defended his payout, saying he qualified for it because he signed an employment contract in 2002 that guaranteed he would receive a gratuity at the end of his term.

‘People just want to see my name rubbished in the newspapers,” he told the M&G. He said that his predecessor, Selby Baqwa, had received a payout of about R4-million at the end of his term.

Speculation remains rife within the office of the public protector that Mushwana suspended Mthethwa because of Mthethwa’s reluctance to authorise the payout.

‘That’s rubbish, absolute rubbish,” Mushwana said.

‘There was a clear opinion of counsel that said we should suspend the chief executive.” After Mthethwa consulted lawyers, the new protector, Madonsela, reversed the decision and he returned to work six days later.

The M&G has learned that Mthethwa wanted to consult other stakeholders, such as the department of public services and administration, before authorising the payout, as there were different interpretations of ‘vacation of office”.

Although some in the protector’s office interpreted the ‘vacation of office” as the end of the public protector’s term, others believed the interpretation did not take into consideration the fact that Mushwana was moving to another Chapter 9 institution in becoming chairperson of the SAHRC.

Baqwa joined the private sector on his departure.

Suspicion grew within the protector’s office when Mushwana’s gratuity was authorised the day after Mthethwa was suspended and it was deposited into his bank account the following day.

Shirley Thoke, who acted as a chief executive for six days and is perceived to be close to Mushwana, authorised the payment.

The protector’s office has previously rubbished allegations of nepotism against Mushwana in relation to Thoke. Masibi recently said the speculation was not new and was part of ‘a vendetta and smear campaign” to damage Mushwana’s name.

Mushwana justified his generous payout by saying that his new job at the SAHRC, where he will report for duty on Monday, does not have any benefits.

‘There is no pension fund, unless they improve something. [That] gratuity is not even transferable,” he said.

But the SAHRC said Mushwana would have the same pension fund provisions as the previous chairperson, Jody Kollapen, and his pension contributions would be deducted from his salary package. Kollapen received a payment of about R500 000, which consisted largely of his pension fund contributions, when he left the commission.

The M&G has learned through sources at the Human Rights Commission that the institution is awaiting a Cabinet response to Mushwana’s request that his SAHRC salary match what he earned as public protector. He has denied this: ‘I have never asked for anything. I have never spoken to anyone about the salary,” he told the M&G.

Mushwana’s term at the protector’s office was marred by controversy, which included doubts about his leadership style from outside and inside the institution.

A team-building exercise last year conducted by an independent consulting company revealed that employees believed Mushwana had an ‘autocratic” management style.

‘[The office of the public protector] can be a better place if advocate Mushwana releases power to other leaders, like his deputy,” recommended the consultants. The exercise, the results of which the M&G has seen, also found that staff members spied on one another and informed Mushwana, creating camps and distrust in the office.

Throughout his term of office, Mushwana, has been accused of succeeding only in protecting the ANC from the people instead of protecting the people as his mandate required. These are some of the controversies that surrounded his term as the country’s Public Protector.

May 2004
A public spat erupts between Mushwana and his boss, justice minister Penuell Maduna, who together with director of public prosecutions, Bulelani Ngcuka, accuse Mushwana of being ”spineless” and ”a liar”. Mushwana had found that Ngcuka treated deputy president Jacob Zuma unfairly and inappropriately and that he violated the deputy president’s human rights in the corruption investigation. Parliament later agreed with Mushwana’s finding.

August 2006
The Public Protector is perceived to have gone easy on then Deputy President Phumzile Mlambo-Ngcuka in his investigation into her R 700 000 Christmas joyride to the United Arab Emirates. Mushwana found that the deputy president was not only entitled but ”obliged” to act as she did for her own safety. His report added that there was nothing unethical or improper in a deputy president having the travel bill funded from the public purse.

November 2006
Mushwana found no link between then Social Development Minister Zola Skweyiya awarding a large government contract to a company partly owned by Imvume — an oil company implicated in the Oilgate scandal — and that company’s interest-free loan to Skweyiya¹s wife. Instead he found Skweyiya guilty only of non-disclosure of the loan to Parliament and imposed a sanction requiring the minister to apologise to Parliament.

July 2006
Mushwana and his deputy Mamiki Shai engage in a verbal fight in the media about allegations of sexual harassment and claims of defamation against each other, with Mushwana describing the relations with Shai as ”irreparable”. They however continue to work together until the end of Mushwana’s term of office.

February 2009
Mushwana’s investigation does not find any misappropriation of public funds by the office of the deputy minister of home affairs, Malusi Gigaba, after Gigaba sent flowers to his wife at the department’s expense and his office paid for flight tickets and car rentals of several private individuals on several occasions. The Public Protector said an error in respect of the flowers sent to Gigaba’s wife was admitted and that the expenditure concerned had been reimbursed.

July 2009
Judge Ntsikelelo Poswa of the Gauteng North High Court overturns Mushwana’s report on the Oilgate scandal, ordering that the matter be reinvestigated. In the judgement, Judge Poswa criticised Mushwana for refusing to investigate certain allegations and drawing conclusions without launching a proper probe. Mushwana’s office said that it would appeal the ruling.

October 2009
Mushwana causes a state of wariness at the SA Human Rights Commission when he mentions in an interview that as part of his plans for the commission, he would ask for excessive powers of CEOs to be altered. He plans to push for the amendment of the South African Human Rights Commission Act of 1994, to clearly define the separate roles of commission chair and that of its CEO.