One of the people whose evidence Public Protector Busisiwe Mkhwebane relied on to decide that Water and Sanitation Minister Gugile Nkwinti abused his powers, is her own chief executive officer, it has emerged from court papers.
The minister and Mkhwebane are embroiled in a court battle over the release of her report into the 2011 acquisition of the Bekendvlei farm in Limpopo, when Nkwinti was still minister of rural development and land reform. Nkwinti urgently approached the Pretoria high court on Friday night to interdict the release of the report.
The report finds that he abused his position as minister and was in breach of the Executive Ethics code, which he denies.
The real legal battle is about whether Mkhwebane can be said to have afforded Nkwinti an opportunity to respond to her — as required by the Public Protector Act.
Mkhwebane gave Nkwinti 18 days to respond, but she did not answer his requests for an extension until the day the report was issued, when she refused. This, Nkwinti’s counsel argues, amounts to not being given an opportunity. The case was argued in court on Monday and judgment is expected on Thursday.
However in a replying affidavit, filed in court over the weekend, Nkwinti also revealed that some of the evidence relied on by Mkhwebane was that of her own CEO, Vusi — spelled “Vussy” in the Public Protector’s report — Mahlangu.
Mahlangu had been fired by Nkwinti over “his irregular conduct” relating to the very subject of the investigation: the Bekendvlei farm. Nkwinti said it was “extremely disconcerting to me” that Mahlangu was now employed at the Public Protector’s office.
Responding to questions, the public protector’s spokesperson Oupa Segalwe said that Mkhwebane had considered the potential conflict, “ as she does in all other cases before her”.
“As a professional, she took the necessary action at all material times to manage the potential conflict, informed by the constitutional injunction to act impartially in considering all evidence before her,” he said.
Mahlangu was the senior official who facilitated the acquisition of Bekendvlei farm — worth R97-million — by the land department and who handed over its management to former Luthuli House employee, Errol Velile Present and a business partner. Nkwinti introduced Present to Mahlangu and also gave a speech at Present’s wedding, suggesting the minister and businessman were friends.
An initial investigation by Deloitte suggested that Nkwinti be charged under the Prevention and Combating of Corrupt Activities Act over the farm, but the final report made no adverse findings against him.
Mahlangu refused to cooperate with the Deloitte investigation but was fired after the interim report implicated him and after a disciplinary process that found him guilty on six charges of misconduct related to the Bekendvlei farm, said Nkwinti.
However, Mahlangu did cooperate with the public protector, giving evidence to her that Nkwinti said he had not been aware of.
“Most of the facts and reasons that led the first respondent to make adverse findings against me are completely new to me … on the basis of the officials [such as Mr Vusi Mahlangu] implicated by the investigation reports,” Nkwinti said.
Segalwe said Mahlangu “was interviewed long before he joined the Public Protector”. According to the report, Mahlangu was interviewed on February 5 2018. He was appointed on May 2 2018, Segalwe said.
He said another important point was that the complaint did not come from the Public Protector or Mahlangu. The complainant was Democratic Alliance MP Thomas Walters and it was made “long before Mr Mahlangu joined the Public Protector South Africa”. The public protector is also obliged by law to investigate any alleged breach of the code, said Segalwe.
“The Public Protector had to be thorough in her investigation. This had to encompass her consideration of the evidence that Mr Mahlangu shared with the investigator long before his employment as Public Protector South Africa Chief Executive Officer”.
Mkhwebane did not disclose in her report that Mahlangu was now employed by her office because it was not necessary, as there was no conflict, said Segalwe.
The CEO’s functions are financial, administrative and clerical, he said. “Investigations are at an arm’s length from him and he does not meddle in that space. That work is handled by the Chief Operating Officer to whom all heads of investigations report”.
Legal experts disagreed on whether Mkhwebane could clearly be said to have a conflict of interest. One senior lawyer said that it was “manifestly a problem”, because in taking Mahlangu’s evidence, she would have to assess his credibility as a witness; and — given their close working relationship — was unlikely to do so impartially. It was also inappropriate to hire someone who was directly implicated in a pending investigation or was going to be a witness, he suggested.
But another senior lawyer suggested that she was entitled to rely on the evidence she had, if it appeared prima facie reliable, and the real issue lay with the question of whether Nkwinti had an opportunity to respond.
He said it was important to remember that the procedures to be followed by the public protector’s office were supposed to be more flexible than a court’s. However, the perception that there could be a conflict was also relevant he said, especially when Nkwinti was not ultimately heard by Mkhwebane before the report was issued.
The report, which the Mail & Guardian has seen, suggests that there was little corroborating evidence for what Mahlangu said in his interview. The report says: “According to Mr Mahlangu, the acquisition of the farm came as a ministerial instruction which he prioritised as such. Even though Mr Mahlangu indicated that there were communications between himself and Minister Nkwinti concerning the aforesaid project, no evidence in this regard could be obtained. Analysis of mobile phone text messages exchanged between the two required the physical handsets of both Minister Nkwinti and Mr Mahlangu. Emails could not be retrieved as Mr Mahlangu’s laptop was confiscated,” the report reads.
The Citizen newspaper reported in May 2018 that Mahlangu’s appointment as CEO had caused dismay in the office of the public protector because he had left the land department under a cloud and was yet to clear his name. Segalwe said his court challenge to his dismissal was still pending in the Labour Court.
“In terms of regulation 61(1) of the regulations framed under the Public Service Act, Mr Mahlangu was eligible for re-employment in the public sector. The regulation prohibits the re-employment of people who had been dismissed for the kind of misconduct Mr Mahlangu was found guilty of for a year from the date of dismissal.”
Segalwe said Mahlangu had disclosed how he came to leave the Land Affairs department during his interview. “Since he was the best candidate, it was resolved that he not be prejudiced, pending the outcome of the Labour Court case”.