Mapula Mokaba-Phukwana, former MEC for Transport, Safety and Liaison and now incumbent of the Agriculture and Rural Development portfolio, has requested the Public Protector (PP) to take the report written about her alleged maladministration and contravention of the Executive Ethics Committee Act, 1998 on review.
Findings of the report
The PP came to the conclusion that Mokaba-Phukwana improperly awarded a contract to MPA Investigation Team to investigate allegations of corruption in the department in September 2014. She did not have the legal authority to award a contract to the company. According to the report she thus allegedly violated the Public Finance Management Act (PFMA) and the Constitution and such conduct constitutes improper conduct according to the Constitution, and maladministration in terms of the Public Protector Act, 1994. The report stated that she irregularly awarded the contract without following proper procurement processes and legal prescripts. Her conduct constitutes improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4) (i) of the Public Protector Act of 1994. It was found that her conduct was in violation of the Executive Ethics Code.
The report emanates from an investigation by the office of the PP into alleged maladministration and breach of the Executive Code of Ethics by the MEC in appointing a company, MPA Investigation Team, on 14 September 2014 to do a forensic investigation in the Department of Transport. The investigation followed a complaint by Economic Freedom Fighters (EFF) laid at the Hawks’ office in Polokwane on 15 July 2015. A draft report was leaked to the media last year.
Comment by Mokaba-Phukwana
“The report is the same as the previous leaked report and I want them (the PP’s office) to find out what the interest of the people is who leaked it,” Mokaba-Phukana in a telephonic interview with Polokwane Observer on Monday said following a press conference during which the EFF released the report to the media. She said she demanded to know what moneys she had to pay back, as the first payment to the company, that was allegedly appointed irregularly, was made in March 2015, “after it has been regularised by investigators, the Head of Department (HOD) for Treasury and the HOD for Transport and after it was first cancelled.” She said the PP was working on hearsay and that she wanted to see all documents that were used in the PP’s investigation, as she herself has all documents. Mokaba-Phukwana said the report and its contents were not discussed with her nor did she receive any response on her query as to why and how the draft report was leaked.
She further said she had a mandate from the Office of the Premier to appoint an investigative team and an instruction from the legal section at the Office of the Premier to approve the investigation. The legal team also drafted the letter of appointment, she maintains.
She will continue dealing with corruption.
Public Protector: Basis of findings
The PP’s report stated that the MEC had violated the principal of legality and the rule of law as enshrined in section 1 (c) of the Constitution. The MEC exercised a power not conferred to her. The power and responsibility for the procurement and provisioning of goods and services in government departments are exclusively vested in the accounting officer of a department in terms of section 38 of the Public Finance Management Act (PFMA) and does not make provision for delegation of responsibilities nor provide for any exceptions or circumstances under which such responsibilities may be executed by anybody else.
Mokaba-Phukwana, according to the report, violated section 217 (1) of the Constitution, section 38 (1) (a) (iii) of the PFMA and Regulation 16A3.2(a) of National Treasury Regulations issued in terms of the PFMA by appointing MPA Investigation Team without following a system which is fair, equitable, transparent, competitive and cost effective.
Treasury Regulation 16A6.4 makes provision for not inviting competitive bids if it is impractical to invite competitive bids, but the PP found Mokaba-Phukwana failed to demonstrate how it would have been impractical to invite competitive bids even if she did not involve the people allegedly implicated. “If the matter was so urgent as she alleged, nothing stopped her from reporting it to the relevant law enforcement agencies in order to preserve whatever evidence of corruption which needed to be uncovered,” according to the report.
Regarding the HOD, Hanli du Plessis, the PP’s report found she had been subjected to undue pressure from the MEC to re-appoint MPA Investigation Team “even if she is reluctant to say it in the open.” It was found she improperly regularised the contract with the company upon a verbal instruction by the MEC on 24 February 2015. The firm “was re-appointed to achieve a predetermined outcome,” the report found. The sole director, Mpho Pearl Antonio was allegedly employed as a public servant and doing extra remunerative work outside her employment and entered improperly into a contract with the Department of Transport. She violated section 30(1) of the Public Service Act.
The department incurred irregular expenses of R484 296 in the process.
The PP advised Provincial Government to consider taking appropriate disciplinary action against Mokaba-Phukwana with regard to her conduct as outlined in the findings of the report and, in consultation with the national/provincial treasury determine the exact amount of irregular expenditure incurred by the department and recover such irregular expenditure from her. The Premier was advised to ensure that the report come to the attention of all members of the Executive Council within 30 days from the date of the report and the Speaker of the Legislature that the report be tabled in the Legislature within 30 days. Appropriate disciplinary should also be taken against Du Plessis and the Police, being Antonio’s employer, must take appropriate action against her within 60 days.
Story: NELIE ERASMUS