CASAC

CASAC seeks personal costs order against Public Protector

CASAC is a seeking a punitive personal costs order against Public Protector, Adv Busisiwe Mkhwebane, in its application to review and set aside the Report on the Vrede Dairy Farm.

Following receipt of the record of decision (The Rule 53 Record) from Adv Mkhwebane it is clear that she had deliberately curtailed the investigation and acted in a manner inconsistent with the demands of an independent office. In its supplementary affidavit, CASAC’s Executive Secretary, Lawson Naidoo highlights the following aspects revealed by the Rule 53 Record:

• A National Treasury Report which had previously not been made public pointed to the active involvement of senior politicians, former Premier Ace Magashule and former MEC for Agriculture, Mr Mosebenzi Zwane, in facilitating the unlawful project, and recommended that disciplinary action be taken against the head of the Department of Agriculture, Mr Peter Thabethe and its CFO, Ms Dlhamini – no such action has been taken;
• The Final Report on the ‘Vrede Integrated Dairy Project’ released by Adv Mkhwebane on 8 February 2018 made no reference to a Provisional Report having been prepared as is the custom in such investigations by the Public Protector. However the Record now shows that such a Provisional Report was concluded by former Public Protector, Adv Thuli Madonsela. Of particular concern is that it now appears that Adv Mkhwebane altered that Provisional Report in material ways to exonerate the officials named above. In the Provisional Report, Adv Madonsela found that:
o the accounting officer (Mr Thabethe) was guilty of improper conduct, abuse of power and maladministration Yet Mkhwebane’s report said that the Premier institute disciplinary action against “implicated officials’, removing the specific reference to Mr Thabethe
o a proper accounting and forensic investigation and audit be conducted by the Auditor General was necessary to verify all expenditure incurred in the project and whether there was value for money – this was inexplicably excised from the Final Report
o the Special Investigating Unit (SIU) should conduct a forensic investigation into maladministration, improper conduct by Departmental officials, and the unlawful expenditure of public funds – this was also removed from the final report by Adv Mkhwebane.

In his supplementary affidavit, Naidoo states:
“In the absence of any explanation from the Public Protector, CASAC submits that the only possible inference, which the Court should not hesitate to draw, is that she deliberately curtailed the Report’s findings and remedial action in an effort to protect Department officials, and thereby acted for an improper purpose and in bad faith.”
CASAC question’s Adv Mkhwebane’s motives in pleading that she will not oppose its application and that she will abide by the decision of the court. This appears to be a feeble attempt to avoid having to explain the inconsistencies between the provisional and final reports and her motives in sanitising Adv Madonsela’s provisional report. As a result CASAC has also amended its Notice of Motion and no longer seeks to compel the Public Protector to investigate the complicity of senior political figures – she cannot be trusted to do so.
We also point out that Adv Mkhwebane has misled Parliament. Appearing before the Portfolio Committee on Justice and Correctional Services on 17 April, she indicated that she will now institute an investigation into the politicians involved in the project without disclosing that she had amended the provisional report to specifically exclude them from further scrutiny.
In terms of her affidavit filed together with the Rule 53 Record, Adv Mkhwebane argues that resource constraints precluded her from conducting a more thorough investigation, yet fails to explain how she was so constrained. We point out that she did not subpoena any witnesses, nor did she attempt to speak to any of the supposed beneficiaries of the project. This would not have required any significant resources, and she therefore failed to conduct a rational, reasonable and lawful investigation into the Project notwithstanding any financial constraints.
CASAC seeks orders declaring that Adv Mkhwebane has failed to discharge her duties in terms of the Constitution as well as the Public Protector Act, and that her Report into the Vrede Dairy Project be set aside as being unconstitutional, unlawful and invalid.

Amended Notice of Motion

CASAC v PP – Supplementary Founding Affadavit

 

CASAC has embarked on a joint constitutional literacy project in high schools in the Western Cape in partnership with the Human Upliftment Project (HUP)

The HUP is a student led non-profit company and human rights organisation, committed to advancing the human good and achieving constitutionally mandated human rights through various outreach programs. The project aims to impart the ability to construct academic arguments independently and develop critical analysis skills, to grade 10 and 11 high school learners.

All constitutional literacy projects are currently underway at Beacon Hill Secondary School in Mitchell’s Plain and Thandokhulu High School in Mowbray.

 

 

CASAC has launched an application in the North Gauteng High Court to review and set aside the Public Protector’s Report on the Vrede Dairy Project.

We believe that Ms Busisiwe Mkhwebane has failed to discharge her duties in terms of the Constitution and the Public Protector Act in that she failed to conduct a thorough investigation, and wilfully ignored crucial information that has been in the public domain regarding the looting of public resources and other irregularities in the Vrede Dairy Project. It is quite startling that the Public Protector can produce such a superficial report that whitewashes the involvement of key political leaders after an investigation that spanned four years.

Find CASAC application here

 

 

Notice of Motion

Annexure A

Public Protector Report

Zuma corruption charges – CASAC ties NPA’s hands

MEDIA STATEMENT

20 December 2017

The National Director of Public Prosecutions (NDPP), Adv Shaun Abrahams has been put on notice not to withdraw the fraud, corruption and racketeering charges against President Jacob Zuma pending the outcome of a Constitutional Court ruling. In a letter http://www.casac.org.za/npa_ndpp-18-12-2017/to the State Attorney (representing Adv Abrahams), lawyers for CASAC, the Legal Resources Centre has drawn Adv Abrahams’ attention to the directions issues by the Constitutional Court on Friday 15 December 2017.

Those directions followed CASAC’s application for an order confirming the decision of the full bench of the North Gauteng High Court delivered on 7 December (CASAC v the President of RSA & Others). CASAC’s application was made In terms of s.172 (2) of the Constitution which states that an order of constitutional invalidity is of no force until it has been confirmed by the Constitutional Court.

The Constitutional Court directions acknowledge the fact that Adv Abrahams is unable to take a decision relating to the charges against President Zuma because his very appointment is in dispute. In setting aside the unlawful settlement agreement with Mr Mxolisi Nxasana, the High Court also set aside the appointment of Adv Abrahams, pending the appointment of a permanent NDPP. The directions also state that any party wishing to oppose CASAC’s application must do so by 19 January 2018.

Adv Abrahams has been requested to provide CASAC with an assurance by 5 January 2018 that he will not withdraw the charges against President Zuma and that if he intends to do so, he gives CASAC two weeks’ notice of such intention. Should he not provide such an undertaking CASAC may apply for an interdict to this effect, and may also seek a personal costs order against Adv Abrahams.

 Enquiries:

Lawson Naidoo

073 158 5736

 

Roundtable Discussion: The “New” Public Protector, One Year On

CASAC’s Executive Secretary, Mr Lawson Naidoo and Dr Makhosi Khoza, a former ANC MP were guest speakers at a roundtable discussion recently hosted by the Catholic Bishop’s Liaison Office and the Hanns Seidel Foundation.

In his speech, Mr Naidoo provided a thorough analysis of the following:

  • The achievements of the current Public Protector, Advocate Busisiwe Mkhwebane since her appointment in 2016.
  • The South African Reserve Bank v Public Protector and Others case.
  • A comparison of appointment processes in Chapter Nine Institutions and their shortcomings.

The discussion was attended by representatives from civil society organisations, government, members of the public and media.

 

Media Statement – CASAC urges utmost caution 18 October 2017

Army on the streets should be a measure of absolute last resort.

“We are not there yet”.

CASAC is concerned by the recent statement by the Minister of Police, Mr Fikile Mbalula, proposing that the SANDF be deployed to combat crime in areas in Gauteng and the Western Cape.

Speaking from Cape Town, CASAC Executive Secretary Lawson Naidoo said:

“We believe that such a knee-jerk response to the scourge of crime, particularly violent and organised crime, is misplaced and probably misguided”.

South Africa requires a more thoughtful, holistic approach that acknowledges the failure of the SAPS to fight crime and to protect people. Such an approach must take into account the socio-economic challenges that we continue to confront.

For full statement click here