Application filed for court to review Mkhwebane’s Prasa report

A review application was submitted on Monday, October 28, in the Gauteng High Court against Public Protector Busisiwe Mkhwebane for her report on the Passenger Rail Agency of South Africa (Prasa).

In April 2019, Mkhwebane released her report on Prasa (the Volume 2 Report). This is the follow-up report to Derailed, her predecessor’s 2015 report on corruption at Prasa. Volume 2 examines eight questions that Thuli Madonsela deferred from her 2015 report.

The review application filed last Monday was submitted by a civil society coalition called #UniteBehind and the organisation is requesting the court to set aside Mkhwebane’s Prasa report and for a cost order against the public protector.

In a statement, the organisation said on Friday, November 1, Mkhwebane’s office filed its notice to oppose.

The organisation said it “was compelled” to file the application “after close study of” Mkhwebane’s report “revealed that it was, in short, a whitewash”.

The organisation said Madonsela’s 2015 report “revealed staggering corruption at Prasa under the board of Sfiso Buthelezi and management of Lucky Montana”.

“The extent of the wrong-doing at Prasa has been expanded by the Treasury reports and Werksmans reports that followed Derailed as part of the [public protector’s] remedial action. Court cases such as Swifambo and Siyangena matters have provided shocking detail of the systematic perversion of our commuter rail agency for narrow interests,” the statement reads.

The organisation said that in her report, Mkhwebane “failed to address the deferred complaints properly and effectively and, in the main, at all”.

“The seriousness of the deferred complaints and the need for an effective investigation cannot be doubted. They concern allegations of financial mismanagement, procurement irregularities, improper expenditure amounting to billions of rands of public funds, and abuses of office by the most senior management at Prasa, including the former GCEO, Mr Lucky Montana and former members of the Prasa board, including the former chairperson and present head of the Treasury appropriations portfolio committee, Mr Sfiso Buthelezi.”

The organisation accused Mkhwebane of failing “to have any apparent regard to the investigations and reports that had been conducted since by national Treasury and Prasa, many of which pertain directly to the deferred complaints, in particular, the complaints against” Buthelezi and a former board member at Prasa, Vusi Twala.

“This despite the fact that the public protector was compelled to have this evidence before her as mandated by Derailed’s remedial action.”

Mkhwebane was also accused by the organisation of doing nothing to further the investigations.

“She did not obtain a single new piece of evidence. She interviewed only three new people, none of whom were implicated in the allegations and appears not to have issued subpoenas. None of the whistleblower employees in Prasa, who had alleged intimidation and victimisation at Prasa, were interviewed. No search and seizure operations were conducted.”

The organisation further said the remedial action in Mkhwebane’s report “is wholly inappropriate and ineffective”.

It said what was most embarrassing for the office of the public protector was that Mkhwebane’s report “does not deal with every complaint that was deferred – only eight of eleven deferred issues are addressed, albeit superficially”.

“Most importantly, the various subsequent reports by Treasury and Prasa were ignored.”

The organisation said Mkhwebane’s report on Prasa was further evidence of her “failure to appreciate the nature and importance of her constitutional function”.

It said the public protector “has a proactive investigative function and a duty to actively discover the truth where there are allegations or prima facie evidence of maladministration, malfeasance or impropriety in public life”.

“The public protector is required, by the special constitutional mandate and powers vested in her, to act with vigilance and conviction of purpose. She has failed to comply with this duty, and failed the rail commuters and the broader public.”

The organisation labelled Mkhwebane “an arch defender of corrupt interests”.

“The public protector’s investigation and report leads to two ineluctable conclusions: that she is incompetent and incapable of performing of the functions of her office effectively, or that she has acted in bad faith and for an ulterior and improper motive.”

(Compiled by Makhosandile Zulu)

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