Adv. Mkhwebane rejects CASAC's claims

30 April 2018

Public Protector Adv. Busisiwe Mkhwebane has noted with concern and disappointment the claims leveled against her by the Council for the Advancement of the South African Constitution (Casac) in a widely publicized media statement dated 25 April 2018.

Although the matter is before the courts, and therefore sub-judice, Adv. Mkhwebane is of the strong view that letting the allegations concerned go without a challenge will have dire implications for her office in the eyes of the public. She, accordingly and without going deep into the merits, wishes to set the record straight.

First, the claim that she “watered down” the unsigned Vrede Integrated Dairy Project investigation draft provisional report, which she found in the office shortly after assuming duty in October 2016 is without any substance. The Public Protector South Africa, has always been at pains to explain to the public that the so-called provisional reports have no legal status. This explanation predates Adv. Mkhwebane’s tenure. The reason such documents did not enjoy any legal status was because they were essentially drafts or working documents.

The initial idea behind the issuance of provisional reports to parties was for purposes of complying with the requirements of Section 7(9) of the Public Protector Act 23 of 1994, which requires the Public Protector to grant parties against whom she is considering making adverse findings an opportunity to make representations to her or offer their side of the story. Such reports have since proved to be a problem as they were prone to leaks. The leaks had the potential to jeopardize investigations.

Provisional reports have since been replaced with what the Public Protector terms Section 7(9) notices. The notices serve the same purpose that her office previously sought to address through provisional reports but are less likely to be leaked.

Second, it is not true that there was any “watering down” of the purported provisional report. As indicated above, such reports are drafts with no legal status and, accordingly, the Public Protector had no legal obligation to implement any purported unsigned provisional report that she would have found in office on assumption of duty.

Regarding the purported provisional report’s remedial action that parts of the investigation be referred to the Special Investigation Unit and Auditor-General, the Hawks’ forensic investigation on the movement of money was already at an advanced stage, with most of the people implicated in wrongdoing having been arrested and some assets preserved in terms of the court orders. There was, therefore no need to reinvent the wheel and start a parallel investigation. As such, the remedial action taken by the Public Protector was appropriate, considering the issues investigated, the arrests and preservation orders.

Third, the simple reading of the purported provisional report will show that the involvement of the politicians was never part of the investigation and neither did it form part of the report. Any suggestion that the Public Protector shielded politicians is therefore devoid of any truth and is malicious. We have attached a copy of the purported unsigned draft provisional report in question and we will be sharing it on our platforms for the public to read it for themselves in an unmediated fashion and make their own conclusions, free from the distortions of people, who have ulterior motives.

“I have two letters from the President confirming that he dismissed at least two members of his Cabinet purely on the basis my findings. This was after I found that the two former ministers had misled Parliament. Yet some people are desperately trying to have the public believe that I have come into office to protect politicians. Surely the far-reaching consequences of my findings in these two cases are at odds with the prevailing narrative which is being peddled out there?” Adv. Mkhwebane said.

She welcomed developments in the implementation of her report in the matter. This, after she recently received correspondence from the Free State government, indicating that, in compliance with her remedial action, head of the Agriculture department, Peter Thabethe, has been suspended and that disciplinary action has been initiated against departmental Chief Financial Officer and other officials.

Adv. Mkhwebane further wishes to remind detractors that she has since taken a decision, at the request of the Portfolio Committee on Justice and Correctional Services, to investigate the involvement of politicians in the project. The investigation seeks to establish if there were any relations between politicians and the suppliers appointed to implement the project. It will also seek to find out if the beneficiaries of the project were in any way prejudiced.

Access the Vrede Dairy Farm project provisional report here.

Issued by Busisiwe Mkhwebane, Public Protector, 30 April 2018