Daily Maverick, article by Suné Payne
The public protector’s office is faced with yet another review of a report by Busisiwe Mkhwebane – this time it is #UniteBehind calling for the second volume of the Derailed report to be set aside by the courts.
“In short, a whitewash’’ is how #UniteBehind labels the public protector’s second volume of the Derailed report. The activist coalition on Monday afternoon said it had approached the North Gauteng High Court to set aside the report which had to investigate claims of corruption and maladministration at one of South Africa’s most embattled entities – the Passenger Rail Agency of South Africa, Prasa.
Busisiwe Mkhwebane’s report, released in May this year, is a follow-up to her predecessor Thuli Madonsela’s 2014 Derailed report. In Madonsela’s last report there were allegations of maladministration and wrongdoing at the state-owned entity, particularly levelled against high-ranking officials including then board chairperson Sfiso Buthelezi and former CEO Lucky Montana. 12
Read in Daily Maverick: Derailed: Will the public protector’s recommendations on Prasa fall on deaf ears?
Four years later, Mkhwebane’s report has no mention of Montana’s name and Buthelezi is cleared of any allegations. Buthelezi had been on the board of control for 10 years; for six of those he was chair of the board. 24
One of Madonsela’s roll-over issues that needed to be solved in the second volume was whether or not Buthelezi had a conflict of interest with a company that had business with Prasa. Allegedly, Buthelezi was the CEO of Makana, which was a subsidiary of a company called Cadiz. The company, Cadiz, was then alleged to have provided advisory services to the entity for its Rolling Stock Recapitalisation Project. If this was true, it would have been a conflict of interest, which needed to be investigated by the public protector, in this case, Mkhwebane.
However, in her report, Mkhwebane found the allegation that Buthelezi failed to disclose his interest in Makana “is not substantiated by the evidence received”. Additionally, the report cleared Buthelezi by stating “no evidence was found that the company concerned was providing advisory services to Prasa on the Rolling Stock Programme, as alleged”. 21
In 2017, Buthelezi was appointed deputy finance minister and in 2018, was shifted to become deputy agriculture, forestry and fisheries minister and now serves as chairperson of the Portfolio Committee on Appropriations in Parliament. 17
But #UniteBehind, in a statement released on Monday, first described the report as “in short, a whitewash” and then went on to say, “PP Mkhwebane did almost 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 whistle-blower employees in Prasa, who had alleged intimidation and victimisation at Prasa, were interviewed.” 38
In its affidavit, #UniteBehind stated, “The financial irregularities, mismanagement and abuse at Prasa have had a serious detrimental impact on the socio-economic rights of working-class commuters… These are essential steps for ensuring that Prasa is able to provide a safe, reliable and cost-effective commuter rail service.”
#UniteBehind wants the second volume of the Derailed report set aside with a cost order against the public protector herself. 115
This is not the first time a report by Mkhwebane, who is in her third year of office has come under review. Two reports related to Absa/Bankcorp have been set aside, and another related to the Vrede dairy farm case, according to News24. Additionally, Phumelela Gaming and Leisure, a horse-racing company, filed an interdict preventing the remedial actions of the public protector’s actions to be undertaken. Read that story here. There is also the upcoming Independent Police Investigate Directorate review, featuring eight former and current members, including former IPID boss Robert McBride. 1
Oupa Selagwe, spokesperson for the Public Protector, told Daily Maverick: “The Public Protector is aware of the court action by #UniteBehind against her report on Prasa. #UniteBehind were not a party in that matter – they were neither the complainants nor were they the respondents but we’ve seen previously the courts granting such applicants jurisdiction on the grounds of whatever they are pursuing in the public interest. Be that as it may, the Public Protector will be opposing that particular matter and she stands by her report.”