Three sides to a story
There are three salient aspects in my fight to clear my name that I would like to address in this entry:
- Letter to the Public Protector
- Settlement agreement
- Analysis of letter from Public Protector
For the background story, read The Investigation
Letter to the Public Protector, September 19 2011
On the September 19 2011, I wrote a letter to the Public Protector in response to her letter to be dated May 30 2011. In my September 2011 letter, I note that the heading to the Public Protector’s May 2011 letter reads: “Mr S. Buthelezi: Termination of service in respect of employment with the Department…”. I specifically bring to the attention of the Public Protector that this heading could cause confusion as the root of my complaint is NOT the termination of my appointment.
The relief I am seeking is that the Public Protector rescind or set aside the Peter Harris Report for two reasons. One, in terms of the parties’ settlement agreement; and two, in terms of PAJA and/or the Constitution and/or the Public Protector Act 23 of 1994, and in terms of public interest, all of which dictate that I should receive administrative action that is lawful, reasonable and procedurally fair.
In my September 2011 letter to the Public Protector, I specifically request the Public Protector to investigate the following:
That the Department of Roads and Transport and Premier Mokonyane breached the settlement agreement as follows:
- It failed to withdraw the charges against me ventilated in the Resolve Group report as it was contractually obliged to do.
- It released, published and circulated the Resolve Group report, which it contractually was prohibited from doing.
- The fact that the Resolve Group report was released by Premier Mokonyane for political gain constitutes an abuse of power, and the Department of Roads and Transport and Premier Mokonyane should issue a media release apologising publicly for their conduct.
- Further that the investigation against Jacobs be completed.
Settlement agreement with the department
Annexure A to the settlement agreement states, “The Department withdraws all charges against Mr Buthelezi.” There are two sets of charges against me namely:
- Charges raised in the Harris report;
- Charges raised in the disciplinary hearing.
The Oxford Dictionary states that the word all is a combining word that means “completely”, “all inclusive” and that its intention is to the highest degree, and the example it gives is “all powerful”. It is therefore quite clear that it refers to both sets of charges. If it was the intention of the department to make it the one or the other it would have stated same. It is therefore an express written material term of the agreement and not just implied.
Paragraph 2 of Annexure A states that “The department lifts the suspension”. This shows further that my resignation is not under a cloud of charges, whether as ventilated in the Resolve Group report or in terms of the disciplinary hearing.
The payment itself of 12 months is the maximum allowed in law for “unfair dismissal” and in itself serves as an acknowledgement that there is no cloud of charges. The department in paragraph 11.1 of the agreement states that it “will not: At any time make any:
- Adverse;
- Untrue; or
- Misleading statement” about Buthelezi.
Adverse according to the Oxford dictionary means:
- “Negative and unpleasant”
- “Not likely to produce a good result” and it provides an example namely: “They have attracted strong adverse criticism”.
It is obvious that both the charges against me considered in the Resolve Group report and the charges in the disciplinary hearing would be negative and unpleasant, and not likely to produce a good result, and in terms of the agreement the department is accordingly prohibited from releasing the Resolve Group report, or publishing it in its totality or portions thereof or circulating it.
Analysis of the letter from the Public Protector
The Public Protector in her May 2011 letter refers to various case-law examples to argue that a settlement agreement is as final as if it was made an order of court. This is not a subject matter of my complaint. What I require is that this settlement agreement with the state be honoured and that the honourable Public Protector enforces it.
The Public Protector states that it will take remedial action as to the department’s failure, as the media release and internal circular isn’t in accordance with the announcement set out in Annexure A to the settlement agreement, which I appreciate.
The Public Protector is, however, concerned that the department will rely on the arbitration clause to state that the Public Protector doesn’t have jurisdiction. The Public Protector was not a party to the agreement and is not limited thereto. If I were to appoint an attorney and arbitrator to take legal action and/or to sit as a presiding officer in its claim against the state, my legal action would be limited to the state’s conduct in breach of the settlement agreement and fall within the private sphere. Such attorney and/or arbitrator would receive numeration and be bound to its mandate.
The honourable Public Protector’s function is that of oversight over organs of state; it has a wide discretion to investigate and it finds its authority in the Constitution and Public Protector Act and not from the complainant itself as a legal representative does, nor is it bound to a complainant’s instruction as an attorney is. The Public Protector exercises its powers not for remuneration as a legal representative or arbitrator, but to comply with its legislative function.
It is clear that I have 9 complaints. An arbitrator would be limited to the settlement agreement. Rather than splitting the issues and asking the arbitrator to deal with only certain aspects of the relief sought, and to pay the arbitrator and my own legal representative to assist with same, I humbly requested the Public Protector to deal with all the issues. The Public Protector’s legislative authority is in any event far bigger than that of a private arbitrator.
The Public Protector is created by the constitution and in terms of the preamble to the Public Protector Act, the Public Protector has the power “to investigate any conduct in state affairs, or in the public administration of any sphere or government, that is alleged or suspected to be improper or have resulted in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action in order to strengthen and support constitutional democracy in the Republic”. It is thus my understanding that if there is a suspicion of improper conduct or prejudice the Public Protector can take appropriate remedial action.
The Public Protector Act states that the Public Protector should perform its functions in good faith, without fear, favour, bias or prejudice. I further quote herewith Sections 4 (a) (i), (ii), (iii), (v) and 5 (a), (b) ,(d) and 7 of the Public Protector Act.
“(4) The Public Protector shall, be competent:-
(a) to investigate, on his or her own initiative or on receipt of a complaint, any alleged:-
(i) maladministrationin connection with the affairs of government at any level;
(ii) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function;
(iii) improper or dishonest act, or omission or offences referred to in Part 1 to 4, or Section 17, 20 or 21 (in so far a it relates to the aforementioned offences) of Chapter 2 of the Prevention and Combating of Corruption Activities Ac, 2004, with respect to public money;
(v) act or omission by a person in the employ of government at any level, or person performing a public function, which results in unlawful or improper prejudice to any person.
(5). In addition to the powers referred to in subsection (4), the Public Protector shall on his/her own initiative or on receipt of a complaint be competent to investigate any alleged:-
(a) maladministration in connection with the affairs of any institution in which the State is the majority or controlling shareholder or of any public entity as defined in section 1 of the Public Finance Management Act, 1999 (Act 1 of 1999)
(b) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a function connected with his or her employment by an institution or entity contemplated in paragraph (a);
(d) Act or omission by a person in the employ of an institution or entity contemplated in paragraph (a), which results in unlawful or improper prejudice to any other person.
(7). The Public Protector shall be competent to investigate, on his or her own initiative or on receipt of a complaint, any alleged attempt to do anything which he or she may investigate under subsections (4) or (5).”
Section 7 of the Public Protector Act is clear. The learned Public Protector has a wide discretion. The Public Protector doesn’t obtain its authority from me, rather it derives authority from the Public Protector Act and the Constitution. The state would only be in a position to allege that the Public Protector shouldn’t intervene if the state complied with its part in the agreement. As a result of the state’s breach, I humbly called on the Public Protector. More especially as the Public Protector is free and its mandate isn’t limited to the scope of the parties settlement agreement.