Non-profit organisation #UniteBehind has slammed Public Protector Busisiwe Mkhwebane for what it has termed as her failure to adhere to her constitutional mandate to investigate complaints fully to uncover the truth.
#UniteBehind has filed papers with the Gauteng High Court in Pretoria seeking to have Mkhwebane's April 2019 report on complaints relating to the Passenger Rail Agency of South Africa (Prasa) set aside.
The organisation, headed by activist Zackie Achmat, is also seeking a punitive personal costs order against Mkhwebane as well as an order declaring she acted "unlawfully and in violation of her constitutional and statutory mandate, and duties".
#UniteBehind is accusing Mkhwebane of not taking steps in three years to advance her office's investigation into Prasa, ignoring crucial documents and reports relating to forensic investigations conducted into procurement practices at the rail agency and for failing to investigate the intimidation of whistleblowers.
Essentially, Achmat alleged that Mkhwebane's findings constituted a whitewash.
"The Public Protector has produced a report that can give the public - and especially the working class public who rely on Prasa's services and whose interests the Public Protector should be concerned to protect - no confidence that the complaints have been properly investigated," Achmat's founding affidavit in support of the application read.
"Unfortunately, the Public Protector's investigation and report leads to the ineluctable conclusion that she is incompetent and incapable of performing the functions of her office effectively, or that she has acted in bad faith and for an ulterior and improper motive," his affidavit read.
In April this year, Mkhwebane signed off on a report that sought to deal with 11 complaints left over from more than 30 complaints filed in 2012 by a Prasa employee.
In August 2015, Mkhwebane's predecessor, Thuli Madonsela, published the first report dealing with some of the 37 complaints. This report was titled "Derailed" and found evidence of widespread financial mismanagement and corruption at Prasa.
Madonsela's report deferred 11 complaints to be dealt with by her office at a later date, as documents she had sought from Prasa were not made available, among other reasons.
Crucially, among Madonsela's remedial actions to be implemented, was that forensic investigations into procurement at Prasa under the leadership of former CEO Lucky Montana and former board chairperson Sfiso Buthelezi were to be undertaken by National Treasury.
This was done, and the Treasury appointed more than a dozen firms to conduct forensic probes into 216 contracts awarded, all worth more than R10m.
Prasa also appointed Werksmans to conduct a separate investigation into Prasa's multi-billion rand locomotive procurement programme.
Mkhwebane did not include any of the 13 or more forensic reports in her follow-up investigation, despite these probes being initiated at the instance of her office.
Following her appointment in October 2016, Mkhwebane took a further three years before releasing her update to Madonsela's report.
Achmat pointed out that Mkhwebane had not obtained a single new document in these three years, as was evidenced in the summary of documents relied on in the report, and accused her of failing to take meaningful steps to obtain the further information required.
Mkhwebane held only three further interviews - which did not include Montana (around whom the deferred complaints are primarily centred) or Buthelezi who is now an MP.
It did not include any individual implicated in serious wrongdoing at Prasa.
Mkhwebane also seemingly did not rely on crucial documents that Madonsela had relied on, and further copied parts of Madonsela's report into her executive summary for the April 2019 report.
"In the absence of evidence that the Public Protector was diligent and proactive in the investigation of the deferred complaints, and took all reasonable steps to obtain the information and documents required to advance the investigation, the Public Protector's repeated 'finding' that the allegations cannot be substantiated for lack of evidence is unacceptable," Achmat's affidavit continued.
He argued that it was not surprising that Mkhwebane had found no evidence to substantiate all but one of the 11 complaints due to a lack of evidence because she never made any efforts to find the evidence.
"Prasa is a crucial state enterprise: it has within its business structure a number of subsidiaries; it transports millions of people and it draws from the public purse billions of rand. It is imperative that an entity as large and impactful as Prasa, when it is investigated, is properly investigated," Achmat added.
According to a media release issued by #UniteBehind surrounding its litigation against Mkhwebane, the Public Protector had filed a notice intending to oppose the application.
She has 15 days to file opposing papers.