Judge slams Pansy Tlakula for causing ‘plethora of unlawful actions’

2014-06-18 15:15

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If details of Independent Electoral Commission chairperson Pansy Tlakula’s misconduct had emerged before she was interviewed for the position, it would likely have affected the decision to appoint her, Electoral Court Judge Lotter Wepener has said.

Wepener ruled that the evidence against Tlakula was sufficient to “warrant her removal from office” by the National Assembly, which will now have to set up a committee to decide on the course of action.

Wepener found that Tlakula “deliberately started an attenuated tender process and chose not to abide by the requirements of the law and therefore her actions in this regard are unlawful and constitute misconduct”.

A “plethora of unlawful actions followed” Tlakula’s deliberate decision not to follow tender processes.

A multiparty forum had accused Tlakula of being politically tainted after an investigation by Public Protector Thuli Madonsela revealed that she had presided over the tender, which was eventually awarded to Abland, a company in which her business partner and ANC MP Thaba Mufamadi had a 20% stake.

Wepener was scathing of Tlakula in his judgment this morning, describing her behaviour in signing the R320 million lease as “impairing the public confidence in the integrity and impartiality of the commission”.

“It is conduct of such a nature that, had it been known at the time of the respondent’s [Tlakula’s] appointment as commissioner, would in all probability have played a role in the decision whether or not to appoint her,” said Wepener.

Wepener also criticised as “wholly unsubstantiated and without merit” Tlakula’s contention that she had a right to “deviate” from tender laws because there was “urgency” to move the IEC to new offices because of looming municipal elections.

“Tlakula’s explanation does not remotely place her conduct within the boundaries of urgency required. Indeed, her answer is an alleged justification without substance. The answer, therefore, does not detract from the fact that she wilfully flaunted legal prescripts on a wholly insufficient basis. She flaunted the legal prescripts and failed to explain how a period of two years, which were to elapse before any further elections were to be held, could possibly have rendered the circumstances or her decision of such an urgent nature to depart from the prescripts,” said Wepener.

Wepener said not once did Tlakula explain during her defence why she did not insist that tender procedures be followed to the letter.

“Indeed, her actions support the perception that she ended one [tender] process [for accommodation] to commence a new one for the benefit of her business partner. However, since this has been shown to be fanciful ... her conduct can only be seen to have breached the prescripts and to have been unlawful,” said Wepener.

Not only were political parties aggrieved by Tlakula’s conduct but employees of the commission, who are members of the National Education Health and Allied Workers Union, shared the “disquiet” about Tlakula’s impartiality, said Wepener.

Wepener also lambasted Tlakula for contradicting herself when she argued that she simply made a mistake as an “afterthought” – which was “not true”.

“The striking incredulity of the respondent’s version of the making of a mistake appears to be an ex- post-facto [after the fact] attempt to justify that which cannot be rationally explained. The respondent cannot exercise a discretion deliberately not to follow the prescripts and then claim that not to have done so was simply a mistake. One of the versions cannot be true,” said Wepener.

The judge further rubbished Tlakula’s contention, during court proceedings, that the Electoral Court could not investigate matters that occurred prior to her becoming a commissioner as the lease was signed while she was the commission’s chief electoral officer.

Tlakula only became a commissioner when she was appointed chairperson in 2012, while the lease was signed in 2009.

“In our view, the purpose of this section [Electoral Act section 9] is to promote high standards for commissioners and to avoid those who are unfit for office to hold office. The result is that the person who occupies the office of the commissioner must be free from conduct, which can taint that high office, irrespective of when the misconduct occurred,” said Wepener in the judgment.

The Electoral Court’s 73-page judgment relied heavily on the findings of Public Protector Thuli Madonsela’s report and the subsequent report by Treasury in its forensic investigation to reach its conclusion, with the court quoting both reports extensively.

These reports had found Tlakula jointly responsible for the lease saga,

Wepener said: “In my view, the respondent [Tlakula] compromised the independence and integrity of the commission to such an extent that her actions constitute misconduct within the meaning of the Electoral Commission Act. It is conduct that renders her unsuitable for the office of a commissioner and destructive of the very values of the commission.”

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