Ex-soldier questions Mkhwebane's efficacy

Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.

An air force soldier who was unlawfully fired from the force has written to Public Protector Busisiwe Mkhwebane to vent his frustration, after the defence force ignored a ruling to reinstate him.

City Press has seen emails in which ex-soldier Bushy Mvithi complained to deputy public protector Kevin Malunga about the “unlawful manner” in which Mkhwebane’s office and some of its employees were “deliberately sabotaging” his case against the SA National Defence Force and Minister of Defence and Military Veterans Nosiviwe Mapisa-Nqakula.

“Why else is my matter being swept under the rug by the Public Protector?” Mvithi wrote in an email dated November 1.

“Why is the Public Protector so hellbent on destroying my children’s future by its very deliberate failure to finalise my matter?” he continued, adding that he was “deeply concerned”.

“Do you have any idea of the harm and suffering your institution is inflicting on me and my family by its arrogant connivance with the minister and the defence force?

“It is prayed for that sanity prevails at the Public Protector. I humbly request a written commitment, with specific time frames from you, as to when you are finalising my matter,” he continued.

The case involved the national defence force’s noncompliance with the 2012 recommendation of the military ombudsman to reinstate an unlawfully dismissed air force member, Lieutenant Colonel Babalo Mvithi, who then turned to Mkhwebane for protection.

Since the report was issued in July last year, Mvithi remains stranded – despite the Public Protector giving the defence force and the minister 30 days and 60 days, respectively, to implement the remedial action and institute disciplinary steps against the defence force officials involved in subverting the military ombudsman’s recommendations.

Serapelo Nkosi, the compliance manager in the Public Protector’s office, told Mvithi in a follow-up email, dated November 6, that: “Subsequent to the [defence and military veterans] department’s institution of a judicial review to set the Public Protector’s report aside, a number of letters were forwarded to the department to urge the Secretary of the Defence to comply with the report, despite the institution of a judicial review.

“Unfortunately, since then no response was received. Furthermore, it is regrettable that this office cannot confirm when this matter will be finalised, even if the time frames were provided in the final report,” wrote Nkosi.

“It is clear that the department is not prepared to comply with the said time frames – hence the institution of a judicial review against the Public Protector’s report.”

To this end, added Nkosi, “we will try to subpoena the department to come before the Public Protector to explain its basis for noncompliance. If no cooperation is received still, we will escalate this matter to the minister of defence and the Parliament.”

Public Protector spokesperson Oupa Segalwe said: “The problem lies with the department of defence and military veterans, which refuses to implement the directives of the Public Protector in respect of the remedial action.

“The Public Protector is on record stating, as a key challenge, the failure by organs of state to implement remedial action outlined in some of her reports.”

Linked to this problem, said Segalwe, “is the financial constraints that her office continues to experience”.

“Among other things, these constraints restrict her from going to court to enforce the remedial action on behalf of complainants such as Mvithi.”

Segalwe dismissed claims that a subpoena had been prepared for Mapisa-Nqakula but withdrawn.

“The claim smacks of malice and seems intent on feeding into the tired narrative that [Mkhwebane] shields politicians – when evidence, as seen in her recent reports, points to the opposite.”

He said that Mkhwebane was “in the process of writing to Parliament to request that [Mapisa-Nqakula] be held to account”.

In August, advocate Ramcharan Thameshni, the national defence force’s legal advice director, commented on the matter, saying: “The department has brought a review application on the remedial actions and the matter is sub judice.

"The department has issued and filed the relevant review court papers and the matter is proceeding accordingly.”

However, the Constitutional Court made it clear – after a landmark case involving the Economic Freedom Fighters and the speaker of the National Assembly – that remedial action could be disregarded “only after a court of law had set it aside”.

Mkhwebane agreed that this meant that the intention to take a Public Protector report on review did not discount the obligation to comply.

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