Public Protector Busisiwe Mkhwebane has found that former home affairs minister Malusi Gigaba violated the executive members ethics code and the South African Citizenship Act 88 of 1995 when granting certificates of early naturalisation to his alleged acquaintances, Ajay Gupta and family.
Although Mkhwebane “made adverse findings against Gigaba” she believed that “any remedial action taken against him would serve no judicious purpose” in light of his resignations as minister of home affairs and member of Parliament in November 2018.
During the course of her investigation, Mkhwebane found that Gigaba had approved the Guptas’ naturalisation “without proper validation of the requisite exceptional circumstances” and, in so doing, the former minister acted in breach of the executive ethics code.
Details of the findings were shared by the Public Protector’s spokesperson Oupa Segalwe.
Mkhwebane investigated the matter following two complaints lodged in terms of the Executive Members’ Ethics Act by Democratic Alliance member of Parliament Haniff Hoosen and Economic Freedom Fighters deputy president Floyd Shivambu on November 3 2017 and March 13 2018 respectively.
In his complaint, Hoosen alleged that Gigaba had failed to comply with the South African Citizenship Act 88 of 1995, which requires the minister of home affairs to, “within 14 days after the commencement of the sittings of Parliament in each year”, table in Parliament the names of persons granted South African citizenship “under exceptional circumstances…” and in doing so, violated the executive ethics code.
Shivambu alleged that Gigaba abused the provisions of the South African Citizenship Amendment Act when “he granted his acquaintances, the Gupta family early naturalisation”.
The EFF deputy president alleged that, on March 6 2018, Gigaba called a press conference “to continue spreading fabrications and dishonesties regarding the Guptas’ citizenship status”.
Gigaba, together with home affairs director-general Mkuseli Apleni, told the media that Atul and Ajay Gupta were not citizens of South Africa.
On March 8 2018 Apleni said Gigaba had made a mistake when he said Atul Gupta was not a South African citizen.
According to the investigation report, Mkhwebane “observed that Naledi Pandor who was minister of home affairs from 2012 to 2014, and Gigaba who served as minister of home affairs from 2014 to 2017 and from 27 February 2018 until his resignation November 13 2018 had both failed to execute their oversight authority.
She “noted with concern that between the period 2013 to 2017 both ministers failed to comply with the provisions of section 5(9) (b) of the South African Citizenship Act, 1995”.
Mkhwebane found “that the process of naturalisation in terms of Section 5(9)(a) of the South African Citizenship Act, 1995 appears to be inadequately regulated and, as such, due diligence is compromised, resulting in inadequate submissions by officials to ministers”.
Mkhwebane said ministers were therefore “put at the risk of exercising their discretion on insufficient information” which is what appears to have occurred during Gigaba’s tenure.
The report concluded that “Gigaba abused the powers he was afforded in terms of the South African Citizenship Amendment Act, 2010 when granting certificates of early naturalisation to his alleged acquaintances, Mr Ajay Gupta and family, without proper validation of the requisite exceptional circumstances”.
In so doing, former Minister Gigaba acted in breach of the executive ethics code, Mkhwebane said.
Gigaba conceded to failing to submit the names of persons who were granted South African citizenship under exceptional circumstances to Parliament every year.
However, Mkhwebane found that Gigaba had also misrepresented facts in the March 6 2018 press conference.
The report said: “Gigaba conceded to furnishing incorrect information during the press conference in question. Even though he rectified his error in a press briefing the following day”.
Mkhwebane found that he had “broke the public trust placed upon him in terms of paragraph 4.1.3 of the Parliament Ethics Code” through misleading the nation.
She directed the minister of home affairs to take cognisance of the findings on the improprieties identified in this report and ensure that such conduct is not repeated.
a) A descriptive framework for “exceptional circumstances”, which does not encroach on the minister’s discretion, but allows for a guideline to facilitate a fair and uniform approach;
b) The applicant must provide a motivation which outlines the reasons why he must be considered for early naturalisation in terms of section 5(9)(a) of the South African Citizenship Amendment Act 2010 and substantiate his motivation with applicable and relevant evidence;
c) Ensure that the responsible officials within the department of home affairs consider verifying the accuracy of the reasons provided in the motivation so as to present a submission with recommendations to the minister which is based on verified facts; and
d) When presenting the list of approved early naturalisation applications for tabling to the Parliament of the Republic of South Africa in terms of section 5(9) (b) of the South African Citizenship Amendment Act, 2010, the minister should consider attaching, in his/her submission, all relevant information and documentation considered for each case so as to satisfy Parliament of the deliberation behind each decision.
Mkhwebane also urged the current department director-general to “also consider taking appropriate action against departmental officials who were involved in the naturalisation of Ajay Gupta and family for their failure to exercise due diligence by verifying the accuracy of the information contained in the motivation for early naturalisation which was relied upon by the former minister, in approving and granting the certificates for naturalisation to Ajay Gupta and family”.
In others reports, Mkhwebane also found procurement irregularities involving the building that was leased by the department of public works and infrastructure for use by the judicial commission on state capture.
The building was owned by the Tiso Blackstar Group.