Mashaba files for review application against Public Protector

31 October 2021

ActionSA President, Herman Mashaba, has filed an application to review and set aside erroneous findings made by embattled Public Protector, Busisiwe Mkhwebane, in her report of December 2020. A copy of my founding affidavit can be found here.

Mkhwebane’s report is the result of a so-called “anonymous” complaint to her office by the ANC, alleging maladministration with respect to irregular appointments, irregular salary increases, financial mismanagement, and conflicts of interest under the multi-party coalition government, which I led.

In the present application to our courts, I demonstrate that Mkhwebane materially misdirected herself in addressing the merits of the scurrilous complaint. The matter is of importance, not only because her findings against me are inaccurate and harmful to my personal, and professional reputation, but further weaken the stature and competence expected of the office of the Public Protector – a role she has failed at. In that regard, having the findings reviewed is a matter of public interest.

The report by Mkhwebane exhibits, either an unfortunate inability to meaningfully analyse extensive submissions made to her prior to the finalisation of her report regarding baseless claims against my person, or a delinquent ignorance of the application of the law. Indeed, the report itself contains contradictory statements, which makes it difficult to follow the Public Protector’s reasoning for the findings against me.

Accordingly, I have requested that the findings against me in her report be reviewed and set aside. In my papers, I have addressed two material findings:

That I unlawfully and irregularly entered the procurement space and solicited free services for the city and that this amounted to a conflict of interest; and

That I interfered or influenced the funding allocation for a youth drug rehabilitation and support programme to fund a non-governmental organisation (“NGO”) called the Field Band Foundation (“FBF”).

In both instances, substantial evidence to refute the allegations were provided to the Mkhwebane, yet she patently failed to apply her mind to the evidence provided to her. This, unfortunately, led her to the erroneous findings that aren’t substantiated.

This deeply concerns me, and I believe it calls into question the Public Protector’s dereliction of her constitutional and statutory duties. I highlight the following two aspects as being of particular concern:

Firstly, when I was appointed as the Executive Mayor, I resigned from all my directorships.  Further, I declared my financial interests to the City’s Integrity Commissioner.  As a result, I received a letter from the Integrity Commissioner confirming my compliance with declaration requirements. When I sought free advice and expertise to the City on implementing systems and insourcing processes, it was made clear that the City would not enter into a procurement contract for said free services nor would any benefit be granted (in material or in kind) to such a provider.

Moreover, in the interests of transparency, I discussed proposition with the Mayor Committee.  No objections or concerns were raised by the Committee. Indeed, the report from said meeting indicate as such. To this day, no evidence has been provided to show that the advisor in question, me, or any of my family interests have benefitted from the free advice provided to the City.

Ultimately, the sole beneficiaries of the advice received were the City’s security personnel who benefitted with improved salaries and working conditions through insourcing and by contracting directly with them.  Striving towards more dignified conditions for indigent people in our country was, and continues to be, one of the focal points of my political career. For this reason, the Public Protector’s claim of a conflict of interest is without merit.

Secondly, the allegations which led to the findings against me have been addressed on more than one occasion with the Public Protector. In March 2019, the City of Johannesburg was called to furnish the Public Protector with various documents and clarify a number of issues to assist her in the course and scope of her investigation.  As part of the City’s formal response, I deposed to an affidavit. The second occasion I addressed these allegations was in my response, to her office in June 2020, following a notice issued. In relation to the matter on the FBF, this is an NGO that has provided over 70 000 children, over the last 22 years, from broken families and child-headed households, with opportunities for expression through the arts. The success of this NGO is world renown. In February of 2017, the City held a discussion on its strategy to combat the scourge of drugs, a critical component of which is our support of NGOs who work in affected communities to provide young people a path away from drugs. During this engagement I suggested that Social Development look into the FBF. Social Development engaged with the Field Band Foundation and received a proposal which was assessed and determined to be of value to the City. While the Public Protector would have the public believe that this was improper, it was done in the open in forums managed by City officials with no involvement on my part. It was formally recorded in a report to the Mayoral Committee – hardly the efforts of a government or an individual seeking to hide something or improperly benefit.

Through the powers afforded to the then MMC, a grant was approved and tabled in the Mayoral Committee. It is worth noting that a number of municipalities and the National Department of Arts and Culture have also worked with and supported the FBF. My family has donated historically to this organisation, continuing to do so today, and I have chaired the NGO for many years. However, prior to joining the City, I had already resigned my directorship in the organisation.

I do not seek to hide my involvement in the numerous worthy causes my family has been involved in supporting over the years. However, there is no evidence support the assertion that whilst as Mayor, I ever conflated the two. Again, the Public Protector fails to establish any wrongdoing in this matter, which makes her findings all the more bizarre.

With the above stated, I suggest that the Public Protector has flagrantly failed in discharging her mandate.  This is not surprising given that the present Public Protector has had several of her reports challenged and overturned by our courts. Just recently, in Public Protector and Others v President of the Republic of South Africa and Others [2021] ZACC [19]. The Constitutional Court remarked that:

“The Public Protector, like all of us, is fallible and mistakes are to be expected in the course and exercise of her powers.  But what is troubling in this matter is the series of weighty errors, some of which defy the characterisation of an innocent mistake.”

Consequently, this does not inspire confidence in the quality and legitimacy of her reports.

Ultimately, her supposed findings are unconstitutional, unlawful, irrational, and invalid. I look forward to resolving the matter in court.

Issued by Herman Mashaba, ActionSA President, 29 October 2021