REPORT OF THE PUBLIC PROTECTOR IN TERMS OF SECTION 182(1)(b) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 AND SECTION 8(2A)(a) OF THE PUBLIC PROTECTOR ACT, 1994

PUBLIC PROTECTOR SOUTH AFRICA

REPORT NO. 31 OF 2018/2019 ISBN NO. 978-1-928366-88-1

"Allegations of failure to declare interest which amounts to a violation of the Executive Ethics Code by the Premier of the Western Cape Province, Honourable Helen Zille"

REPORT ON AN INVESTIGATION INTO ALLEGATIONS OF BREACH OF THE EXECUTIVE ETHICS CODE BY THE PREMIER OF WESTERN CAPE PROVINCIAL GOVERNMENT, HONOURABLE HELEN ZILLE

Executive Summary

(i)  This is my report issued in terms of section 182(1)(b) of the Constitution of the Republic of South Africa, 1996 (the Constitution), section 3(2)(a) of the Executive Members' Ethics Act, 1998 (EMEA) and section 8(2A)(a) of the Public Protector Act, 1994 (the Public Protector Act).

(ii) The report communicates my findings and appropriate remedial action taken in terms of section 182(1)(c) of the Constitution, following an investigation into allegation of a possible violation of the Executive Ethics Code (Code) by the Premier of the Western Cape Province, Honourable Helen Zille (Premier).

(iii) The complaint was lodged with my office by Honourable KC Dugmore, a Member of the African National Congress and Western Cape Provincial Legislature (Complainant) on 29 August 2017 in terms of section 4(1)(b) of the Executive Members' Ethics Act, 1998 (EMEA).

(iv) In the main, the Complainant alleged the following:

(a) There was an exchange of emails between the Premier, the Director General and senior officials of the Western Cape Education Department (WCED) around September and October 2014 in which the Premier actively supported a process. which resulted in the procurement of computer tablets for use in certain schools in the Western Cape Province;

(b) Paper Video, an initiative co-founded by the Premier's son, Mr Paul Maree, was given preferential treatment by both the WCED and the Department of the Premier of the Western Cape in that the tablets were delivered to him to load the Paper Video resources onto the 150 tablets;

(c) The email exchange revealed that emergency procurement was undertaken to secure the tablets arising from the Premier's instruction based on the request to her made by her son;

(d) There is no evidence that a formal process was followed with regard to what appears to be an informal unsolicited bid to conduct a pilot project in the Western Cape schools from Paper Video. The Premier intervened in this process, on behalf of her son, to create an opportunity for a single service provider to "have the first bite at the cherry and install a learning resource onto the computer tablets':·

(e) The aim of Paper Video workshops was to test the viability of its platform on the WCED's resources and to create awareness around its products and services which amounts to an unfair advantage to one service provider. It would also appear that there was no budget allocation for these tablets by the WCED; and

(f) By participating in the process of procurement of the tablets for the use of her son's product and marketing and promotion thereof, her conduct was in violation of the EMEA and the Executive Ethics Code No 41 of 2000 (Code) by advancing her son's business.

(v) On analysis of the complaint and following a preliminary investigation in which the Premier's alleged involvement and intervention in the procurement process was clarified, the following were issues considered and investigated:

(a)  Whether Premier Zille communicated with the Western Cape Education Department's senior officials, Director General and MEC Schafer around September and October 2014 in which she allegedly actively sought to intervene in the management of performance and the execution of a contract of tablets for use in certain schools in the Western Cape in order to promote and secure certain educational endeavours in which her son had an interest, and thereby exposing herself to a situation involving the risk of a conflict of interest between her public duties and her private interests; and

(b) Whether Premier Zille's communication with the Western Cape Education Department's senior officials, Director General and MEC Schafer violated the provisions of the Executive Ethics Code.

(vi) The investigation process was conducted through correspondence with the Complainant and Premier; analysis of all relevant documentation; and consideration and application of all relevant laws and related prescripts.

(vii) Key laws taken into account to determine if there had been a violation of the Code by the Premier were principally those imposing ethical standards that should have been complied with by the Premier are the following:

(a) Section 114 of the Constitution provides powers to the Provincial Legislatures which include, inter alia, to ensure that Provincial Executive Councils, which include a Premier, are accountable to them;

(b) Section 133 of the Constitution provides for the accountability of the Provincial Executive Councils;

(c)  Section 136(1) of the Constitution regulates the conduct of members of Provincial Executive Councils;

(d) The EMEA provides for a code of ethics governing the conduct of the Cabinet, Deputy Ministers and members of provincial Executive Councils; and

(e) The Code regulates the conduct of members of the Cabinet, Deputy Ministers and members of Provincial Executive Councils in performing their official responsibilities.

(viii) I issued a notice to the Premier in terms of section 7(9)(a) of the Public Protector Act in which her my intended findings were disclosed to her and to offer her an opportunity to respond before the final report is issued.

(ix) In response to the section 7(9)(a) notice in a letter dated 12 December 2018, the Premier indicated, in a summary form, that her correspondence with the WCED officials, DG and MEC Shafer in connection with the procurement of the laptops and the role of her son did not amount to a violation of the Code, instead it was a way of managing the potential or perceived conflict of interest in the matter. She further reported that she or her office never participated in the procurement process of the tablets. The process was the sole responsibility of the WCED.

(x) Having considered the evidence uncovered during the investigation against the relevant regulatory framework, I make the following findings:

(a) Regarding whether Premier Zille communicated with the Western Cape Education Department's senior officials, Director General and MEC Schafer around September and October 2014 in which she allegedly actively supported a process which resulted in the procurement of computer tablets for use in certain schools in the Western Cape Province:

(aa) While the specific allegation that the Premier was in 2014 improperly involved in the procurement process of certain computer tablets for the use in public schools in the Western Cape, is not borne from the facts and evidence at my disposal, my investigation, however, revealed evidence that the Premier's relationship with her son in this matter constituted private interest which was sufficient to influence or appear to influence the exercise of her official duties.

(bb) The Premier engaged the MEC for Education and the Director General in 2014 to escalate performance by the supplier for the delivery of the said tablets in order to facilitate access to the tablets by her son and another teacher to use these tablets for the learners wanting to attend matric revision workshops.

(cc) Even though her son was employed as a teacher within the WCED, the access to the tablets was not secured as tools of trade through normal departmental channels, but through the intervention of the Premier, which created an appearance of impropriety;

(dd) The access facilitated by the Premier enabled her son's Company, Paper Video to utilise its software and educational resources through the use of the tablets during the revision workshops, which although primarily intended as a public benefit exercise, inadvertently had the potential of promoting her son's business interests, thereby creating a conflict of interests as envisaged in Clauses 2.3 and 3.4 of the Code.

(b) Regarding whether the Premier's communication with the Western Cape Education Department's senior officials, Director General and MEC Schafer violated the provisions of the Executive Ethics Code:

(aa) The allegation that the Premier's communication with the WCED's senior officials, Director General and MEC Schafer violated the provisions of the Code is substantiated.

(bb) By intervening in the execution of a contract for the delivery of computer tablets for the use in public schools in the Western Cape Province in 2014 in order to ensure that her son and his Company, Paper Video, had access to these tablets for the purpose of presenting revision workshops for a group of matriculants during the October 2014 School Holidays, the Premier exposed herself to a risk of a conflict of interests between her official responsibilities and her private interests.

(cc) Section 136(2) of the Constitution requires the Premier not to expose herself to any situation involving the risk of a conflict between her official responsibilities and private interests. Accordingly, any situation exposing the Premier to any risk of conflict between her official responsibilities and private interests constitute violation of the Constitution. The test is not actual conflict of interest, but a risk of conflict is sufficient to constitute a violation of the Constitution.

(dd) The Premier's involvement in the process that has resulted in securing access to the tablets in question by her son, and in the acquiring of her son's Company's services and resources, has exposed her to the risk of a conflict between her official responsibilities, as a first citizen of the Province and private interests which involved her son. This conduct of the Premier has consequently resulted in the violation of her constitutional obligation to avoid an exposure to the aforesaid risk, in terms of section 136(2)(b) of the Constitution.

(ee) Clause 2.3(f) of the Code provides that "Members may not- expose themselves to a situation involving the risk of a conflict between their official responsibilities and their private interests". Accordingly, any situation exposing the Premier to any risk of conflict between her official responsibilities and private interests constitute violation of the Code. The test is not actual conflict of interest, but a risk of conflict is sufficient to constitute a violation of the Code.

(ff) The Premier's involvement in the process that has resulted in securing access to the tablets in question by her son, and in the acquiring of her son's Company's services and resources, has exposed her to the risk of a conflict between her official responsibilities, as a first citizen of the province and private interests, which involved her son. This conduct of the Premier has consequently resulted in the violation of the Code, which requires her to avoid an exposure to the aforesaid risk, in terms of section 2.3(f) of the Code.

(gg) Section 136(2)(c) of the Constitution also prohibited the Premier from using her position to improperly benefit any other person. Similarly, clause 2.3(d) of the Code also prohibits the Premier from using her position to improperly benefit any other person. In terms of section 132(2) of the Constitution, "the Premier of a province appoints the members of the Executive Council, assigns their powers and functions, and may dismiss them". 

Accordingly, the Premier has direct power and influence over members of the Executive Council and indirect power and influence over those who report to the members of the Executive Council. As a result of the Premier's involvement in the decision to escalate delivery, she directly and/or indirectly influenced the procurement of her son's Company's services. Although the learners may have benefited, the potential or perceived benefit to her son's Company was sufficient to affect the public trust that promoting the welfare of the public was the only or primary motivation.

(hh) Accordingly, the Premier appears to have used her position for the benefit of her son and this is a direct violation of section 136(2)(c) of the Constitution and of clause 2.3(d) of the Code.

(ii) Even though the Premier averred that MEG Schafer was aware of the fact that Mr Maree was her son, the Premier failed to declare such private interests in her engagement with and representations to MEC Schafer, in violation of Clause 3.4 of the Code.

(jj) The Premier's conduct also constitutes maladministration in terms of section 6(4)(a)(i) of the Public Protector Act and unjustifiable abuse of power in terms of section 6(4)(a)(ii) ofthe Public Protector Act.

(kk) The Premier's conduct has also resulted on an improper advantage to the her son, as envisaged in section 6(4)(a)(iv) of the Public Protector Act.

(xi) In the light of the above findings I am taking the following remedial action, as contemplated in section 182(1)(c) of the Constitution:

(aa) The President of the Republic of South Africa must, in terms of section 3(5)(b) of Executive Members' Ethics Act, 1998, within 14 days after receiving this Report, submit a copy of the Report and his comment on my findings to the National Council of Provinces;

(bb) The Chairperson of the National Council of Provinces must, within 30 days of this Report, ensure that this Report is processed in accordance with the applicable rules of the National Council of Provinces; and

(cc) The Speaker of the Western Cape Provincial Legislature (Speaker) must, within 30 working days from the date of the Report, table it before the Western Cape Provincial Legislature for it to take appropriate action to hold the Premier accountable as contemplated in sections 114(2)(b)(i) and 133(2) and of the Constitution.

The full report can be accessed here – PDF.