Another Busisiwe Mkhwebane report faces court scrapping

Yet another report from Public Protector Busisiwe Mkhwebane‘s office faces being scrapped by the courts. Civil society organisation #UniteBehind announced on Monday that it had submitted a review application to the North Gauteng high court against Mkhwebane’s “whitewash” April report into corruption and maladministration at the Passenger Rail Agency of South Africa (Prasa). The organisation is requesting that the report be set aside.

Mkhwebane’s investigation stemmed from the findings of her predecessor Thuli Madonsela, who in 2015 released the “Derailed” report, which revealed corruption at Prasa under the board of former chairperson Sfiso Buthelezi and his then chief executive, Lucky Montana.

#UniteBehind was compelled to file the application after close study of the public protector’s report revealed that it was, in short, a “whitewash”. In her report, Madonsela deferred some aspects of the investigation to a follow-up probe. #UniteBehind said Mkhwebane’s Prasa II report “failed to address the deferred complaints properly and effectively”.

“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,” the organisation said. 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 whistleblower employees in Prasa, who had alleged intimidation and victimisation at Prasa, were interviewed. No search and seizure operations were conducted. Further, the remedial action in the Prasa II report is wholly inappropriate and ineffective. The organisation believes Mkhwebane’s report is “evidence again of [her] failure to appreciate the nature and importance of her constitutional function”.

“[Mkhwebane] has produced a report that can give the public no confidence that the complaints have been properly investigated, that the truth has been uncovered, or at the very least that a concerted and committed effort has been made to uncover the truth,” it said.

The organisation added that the report led to two “ineluctable conclusions” – that she was incapable of performing the functions of her office effectively, or that she had acted in bad faith and for an ulterior motive. Mkhwebane’s office will have about two weeks to file its response to the courts.