Public Protector opens can of worms with early retirement investigation

Busisiwe Mkhwebane
Busisiwe Mkhwebane

Nothing says that even those who pilot themselves as angels and saints cannot abuse their power and public office or, for that matter, whether wittingly or unwittingly, act unlawfully, writes Modidima Mannya.

Author George Orwell’s Animal Farm remains a constant reminder of how inequality manifests in many different ways in our society.

It also reminds us of the dangers of unchecked public power, as well as being praise singers of those who may have failed us.

It teaches us to not sing condemnation of those we may not like without verifying the facts.

But more than anything, it reminds us that we are always vulnerable to abuse of power and discrimination, subtle as it may be.

There is no doubt that the incumbent Public Protector is under siege.

She is repeatedly called incompetent, has been accused of conspiracies and was publicly called a factionalist.

The accusation of incompetence is based mainly on the comments made by judges in some matters where her reports were taken on judicial review.

Other than what the courts have said, nothing else is presented to justify the conspirator, factionalist and idiot tags given to Busisiwe Mkhwebane.

It may just be a case of unmanaged wild imaginations on the part of those making the allegations.

Like anyone exercising public power and performing a public function, courts have found the Public Protector wanting in certain respects.

What the courts have not found though is that she is incompetent.

It may well be that with the collapse of the accountability mechanism, the Public Protector is the last line of defence and the lapses in her office cause pain to the public.

If that is the case, she must take part of the responsibility for the current situation.

However, it is also clear that she is being used as an excuse for the failure of the rest of the system.

Ordinarily, the Public Protector must focus effort on the man and woman who would otherwise not have the resources to challenge the mighty and powerful cloaked in state power.

Instead, the very mighty and powerful have become permanent clients of the Public Protector, using her office as a theatre for their political fights.

The issue of so-called early retirement of public servants is a fairly straightforward one and should not have even reached the Public Protector.

The fact that it did points to the failure of the rest of the system.

There is no basis in law for an employee who wishes to retire after the age of 55 and before the age of 60 to seek the approval of the minister.

Neither is there a requirement in law that a minister approves such retirement.

Making matters worse is when the true purpose is to grant such an employee full benefits to which they are not entitled.

The law does not provide for an employee retiring at 55 to receive full benefits. There is equally no provision for a minister to grant such approval.

Why should an employee who wants to retire early apply for full benefits when she/he is not required in law to apply and why would a minister grant such an approval?

Does a minister have the power to exercise a power that she/he does not have?

The Constitutional Court has repeatedly answered this question in the negative, as it holds that such conduct is against the principle of legality.

Therefore, if no power exits in law to grant such an approval then the minister acted unlawfully and unconstitutionally.

Thousands of employees – such as teachers, nurses, police officers, cleaners – who left the public service before the mandatory retirement age of 65 or who had not reached the qualifying age of 60 must be feeling hard done by to realise that people in a similar position exited with full benefits, courtesy of a ministerial signature.

The reality is that the ministerial approval, and many similar ones, was unlawful and resulted in irregular expenditure.

Where there is irregular expenditure, there must be accountability.

The public, on the other hand, may just be oblivious to the fact that they forked out millions of rands over many years to provide full benefits to a select cohort of privileged public servants – about 3 000 at the last count – who retired early.

The Public Protector’s investigation, outside of her alleged incompetence, has probably opened a can of worms.

It has brought to the fore a rotten practice that has prejudiced the public purse over years owing to ministerial signatures.

The fight has moved from questioning the lawfulness of what appears an unlawful benevolence scheme to questioning the capacity of the Public Protector based on her past performance.

She seems to have committed an unforgivable sin by exposing an otherwise unlawful process that clearly discriminated against other public servants and milked the public purse dry.

There is hardly a questioning of the failure of the overall system to ensure accountability.

Nobody makes an issue with the fact that other organs of state, including Parliament, have failed to ensure proper and full accountability.

Not that this is a valid defence if indeed the Public Protector is incompetent. It simply explains the gravity of the national confusion caused by years of impunity and a collapsed mechanism of accountability.

In this process, some have emerged as the supposed guards of accountability. But as experience has shown, the very guards must be guarded.

The real danger is that until the Public Protector’s finding no one seemed to bother about this gross irregularity. Irregular expenditure must have been disclosed in financial statements.

The audit process must have picked it up and consequently the parliamentary oversight committees ought to have dealt with it and ensured accountability. It is disturbing that none of this happened.

We come from an era where this country almost collapsed because the trustee in chief betrayed our trust.

We woke to millions spent on a homestead and were told of ministerial approvals which turned out to be a ruse.

The state capture saga is the consequence of unchecked exercise of public power. We must not discourage those who point out wrongdoing by inventing conspiracy theories and fallacies.

If there was a clear loss of moral and ethical courage, regardless of who is involved, let justice prevail. Never again must we leave anyone exercising public power unchecked.

Nothing says that even those who pilot themselves as angels and saints cannot abuse their power and public office or, for that matter, whether wittingly or unwittingly, act unlawfully.

Ideally, the job of the Public Protector is to keep an eye on the exercise of public power. That is what the Constitution envisages.

Nowhere in the Constitution is it stated that certain public office bearers must never be checked for their proper exercise of public power.

The deliberate manner in which this early retirement with full benefits was handled lends itself to a criminal process being reopened, with similar matters being fully investigated.

There are more questions than answers. The fact that charges were previously withdrawn counts for nothing.

In fact, the withdrawal of the charges must be investigated.

With a more credible National Prosecuting Authority, this might just be the right time to investigate the approvals and to invoke the Special Investigating Unit to start the recovery process of what are clearly looted public funds.

Mannya is a practising advocate and writer

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July 2020

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