/ 16 November 2012

Public grilling for Thuli Madonsela

Thuli Madonsela.
Thuli Madonsela.

Parliament will use a request by the public protector, Thuli Madonsela, for help with an investigation into allegations of misconduct against her as a pretext for a highly public grilling by the powerful justice committee.

In what parliamentary insiders familiar with process called an "unprecedented" and "political" decision, the busy justice committee will conduct a public probe into claims of nepotism, favouritism and non-compliance with regulations. This is instead of asking an ad hoc committee to conduct initial work in closed session, as was done in previous cases involving deputy public protectore Mamiki Shai.

A dossier containing the allegations is before Parliament, but a political decision was taken not to refer the matter to an ad-hoc committee but rather to the justice committee. It is apparently aimed at airing any dirty laundry in public.

The 52-page dossier includes an anonymous letter dated December 2011 to Themba Godi, chairperson of the public accounts watchdog, and another from Madonsela asking Max Sisulu, the speaker of the National Assembly, to investigate the allegations. There is a second letter from Madonsela to Sisulu, responding to allegations raised by her staff, and a memorandum from a committee in Madonsela's office who investigated the allegations.

In July this year, Madonsela forwarded the dossier to Sisulu, asking that Parliament investigate the allegations because, if they were not addressed, her office would degenerate into instability. "I am writing to request your office to investigate ­persistent allegations of maladministration and governance failure against me personally and against my office in general."

Madonsela told Sisulu that, at her office's last executive committee meeting on June 14 this year, her deputy, Mamiki Shai, presented a document she had written with an ad-hoc committee she had established and chaired. It advised that Madonsela and the chief executive officer, Themba Mthethwa, should be investigated over the allegations made in the anonymous letter written by unnamed public protector employees and dated December 19 2011.

"In the interest of accountability, integrity and the rule of law, I have deemed it proper that Parliament undertakes an investigation to establish the truth," she wrote to Sisulu.

The dossier reveals that most of the unhappiness was directed at Mthethwa and that Madonsela was accused of protecting him.

On September 10, Parliament announced in its daily schedule reports that "a letter dated July 13 2012 has been received from the public protector, advocate TN Madonsela, informing the Assembly of allegations of maladministration and governance failures against the public protector and her office and requesting the Assembly to inquire into the allegations". The letter was referred to the portfolio committee on justice and constitutional development for consideration.

Two parliamentary sources told the Mail & Guardian that the Parliament table staff, who advise presiding officers, recommended that the investigation be undertaken by an ad-hoc committee and its meetings be closed to the public, but the matter was referred instead to the justice committee.

The sources also claimed that the justice committee's chairperson, Luwellyn Landers, refused to conduct the investigation behind closed doors and decided that the meetings would be open to the public. One source claimed that this was done to embarrass Madonsela.

Landers would only say the matter was still being considered by Parliament.

Ad-hoc committee
The precedent for holding such an investigation behind closed doors arises from a case in August 2006 when National Assembly speaker Baleka Mbete appointed a multiparty ad-hoc committee to investigate claims by public protector Lawrence Mushwana's deputy, who also had been Shai, that he had sexually harassed her and two other female staffers. The committee, which was chaired by late ANC stalwart Kader Asmal, held its meetings behind closed doors.

The anonymous letter claims that Madonsela ignored procedures to favour Mthethwa. They claim Mushwana, in a hand­over report to Madonsela, included files that formed part of charges and evidence that the South African Local Government Association (Salga) had amassed against Mthethwa.

In October 2009, three days before Mushwana left office, he suspended Mthethwa. He accused him of misconduct for not disclosing that he had been investigated by his previous employer, 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.

At the time, Mthethwa's 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 that the disciplinary action had been 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 at the time.

According to the letter, "she [Madonsela] chose to lift the suspension and in doing so she unleashed a corrupt official who is dismissive of the consequences of his actions".

Other accusations made against Mthethwa include that tenders were inflated and awarded to his friends, state accountants were threatened for refusing to effect payment without following due process, petty cash "is abused by the CEO [Mthethwa]" and he allegedly forged Shai's signature so that he could pay himself a performance bonus.

According to the letter, Shai opened a case of fraud with the police's commercial crimes unit, but Madonsela allegedly wanted Shai to withdraw the charges because of the embarrassment the publicity would cause Madonsela and her office.

Mthethwa is also accused of deliberately misleading the standing committee on public accounts. Other complaints relate to preferential treatment allegedly given to white and Indian employees.

Legislative prescripts
Madonsela responded to the allegations in a written submission to Sisulu. Regarding claims about Mthe­thwa's alleged corruption, she wrote that specific incidences had not been cited and there were no annexures with supporting evidence. She made internal inquiries about the matter, including approaching Mthethwa, who denied any wrongdoing.

Similarly, there were no annexures or detailed information to support the allegations that Mthethwa did not comply with policies and legislative prescripts.

She wrote that both the human resources and finance departments were requested to list incidences of non-compliance by him, but neither was aware of any. Madonsela said shortly after her appointment, that Mthethwa, through his lawyers, had requested that his suspension be lifted, which she asked Shai to review.

"[Shai] did … and submitted a written finding to Madonsela, who accepted it and [its] recommendations wholly. Mthethwa's suspension was therefore stayed as a result."

On Thursday, Madonsela's spokesperson, Kgalalelo Masibi, said the protector was saddened that "information-peddling" had continued despite calls for people making allegations about her to direct their information to the auditor general under the Protected Disclosures Act or to Parliament.

It is not known when the justice com­mittee will start its investigation.

Themba Mthethwa, CEO of the Public Protector's office replies

Dear Editor

In its last edition, the <em>Mail and Guardian</em> carried a story with the headline "Public Grilling for Public Protector"

Though the headline suggested that the focus of the story would be on the serious allegations pertaining to how the Portfolio Committee on Justice intended to conduct an investigation, requested by the Public Protector into alleged bad governance within her office as contained in a series anonymous letters sent to Parliament and leaked to the media, I noted that the content was in the main about my alleged conduct.

I had been anticipating the story after I was contacted on Twitter by a journalist from your newspaper, asking me to respond to some of the allegations leveled against me in one of the anonymous letters. I was grateful for the opportunity as it granted me a right of reply to present my side of the story. Naturally, I made use of this opportunity telephonically and by text whilst I was in New Zealand, which is 13 hours ahead of South African time. I even requested specific question in writing to my personally email which were never forthcoming

I was, however, saddened by the manner in which the final story was presented. This is because the two main issues that the journalist raised with me, which I duly responded to, were not reflected in the story.

The first issue relates to an allegation that I faked the Deputy Public Protector's signature in order to pay myself a bonus. The other is that I lied to the Standing Committee on Public Accounts about the vetting of Public Protector South Africa staff. I was never asked to respond to the third and fourth issues raised, viz, that unhappiness is directed at me and that a corrupt official has been unleashed as mentioned and quoted in the article

During my telephonic conversation with the journalist concerned, which followed our Twitter engagement, I responded comprehensively to the first and second issues. I further sent a text message to the same journalist, reiterating what I had said during our telecommunication moments earlier. It came as a surprise when these specific comments failed to make it into the final story.

For the record, I would like to state that all the above allegations are baseless. I was cleared by the Inspector General of Intelligence, Adv. Faith Radebe, who was appointed by the Public Protector to investigate the allegation of a faked signature when it first surfaced. Needless to say, this information is public knowledge. A leading Sunday paper already published it a few weeks back. In addition, this information was previously communicated to the media through a press release, which has since been posted on the Public Protector South Africa <a href="http://www.pprotect.org/" target="_blank">website</a>.

On the second matter, I indicated to the journalist during our telephonic discussion that was asked, during an appearance before Scopa, whether the staff within the Public protector's office had been vetted as this is important considering the nature of their work. I responded in the affirmative and this, to my knowledge, was the honest truth as I went to through a vetting process by NIA prior to my appointment at Public Protector South Africa.

With regard to the third matter, that "unhappiness" is directed at me, this is not true, I'm not the only one mentioned therein, but the journalist concerned, for reasons known to her, chose to single me out.

The fourth issue relates to the quotation in the article that the PP "unleashed a corrupt official…" again this is defamatory and untruthful. I was never accused nor found guilty of any corruption. It's reckless for the journalist to continue peddle such defamatory unsigned statements written by disgruntled faceless people.

I would have appreciated it if these two points, as communicated to the journalist concerned, were reflected in the story and the third and the fourth communicated to me or investigated before publishing. I am of the view that failure on the part of the journalist to include these points in the story violated my right to dignity, tarnished my good name and dented by reputation. As a professional from the integrity sector, I cannot overemphasise the importance of being seen to be beyond reproach.

To an average reader, the story as it has been presented, casts me as a corrupt individual despite the fact that no due process ever found me guilty of maladministration or corruption.  

As a senior official of the Public Protector South Africa, I welcome efforts by anyone, including the media, to hold me to account. However, the principle of fair reporting needs to be adhered to so that people are not improperly prejudiced.

The watchdog role of the media is one of the pillars that keep our constitutional democracy vibrant. The impact of this and the unwavering support of the media on the work of the Public Protector have been immeasurable. The Public Protector herself has said as much.

We will continue to work with the media to exact accountability in the exercise of public power and control over state resources while also relying on the "fourth estate" to live up to section 182 (4) of the Constitution, which mandates the Public Protector to be accessible to all persons and communities.

We will also continue to welcome efforts by the media to hold us to account and if need be to red-card us. But we will also expect a fair process.

I trust that injustice and untold misery I have suffered and still suffering as a result of this publication will be redressed. I thank those who have posted unwavering messages of support online and sent some to me.

With kind regards

Mr. Themba Mthethwa
Chief Executive Officer: Public Protector South Africa