Update on the Public Protector process
Following the complaint that I lodged with the Public Protector in 2010, and some correspondence between the Public Protector and my attorney, I received a letter dated 31 March 2012 from the Office of the Public Protector. In this letter the Public Protector suggests that my issues fall within the realm of labour relations, and that in any event, I entered into a settlement agreement which effectively closed all issues relating to the investigation by Peter Harris of the Resolve Group.
In July 2012 I sent a follow-up letter to the Public Protector in which I appealed to her to take a closer look at the issues I had raised.
Does the Public Protector have jurisdiction?
The Public Protector is created by the Constitution and in terms of the preamble to the Public Protector Act 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”. In other words, if there is suspicion of improper conduct or prejudice, the Public Protector can take appropriate remedial action.
Besides the issue of prejudice, I also raised an allegation of possible abuse of power by the Premier of Gauteng. This falls within the ambit of Sections 4, 5 and 7 or any other relevant section of the Public Protector Act. In short, I complained that Premier Mokonyane’s behaviour in convening a press conference and releasing the Peter Harris Report amounted to an abuse, OR unjustifiable exercise of state power, which resulted in unlawful or improper prejudice against my good name.
The Premier instituted an investigation by Peter Harris against me and the then MEC, Mr Ignatius Jacobs, which was completed and dated 8 June 2009. Peter Harris attended to the investigation and delivered a report in which various charges were made against me. The Premier, upon receiving the Harris Report, instituted charges against me, which were subsequently withdrawn in a settlement agreement dated 20 November 2009.
One year later, on 3 May 2010, the Premier, Mrs Nomvula Mokonyane, made the Report public, in an attempt (which I allege) to further her political career. I contend that when Premier Mokonyane circulated the Harris Report, it left the labour law arena and entered the arena of public interest, thus becoming a Public Protector-related issue. Premier Mokonyane’s behaviour constitutes abuse, an unjustifiable exercise of power and unfair and improper conduct. In terms of Section 4(v) the Public Protector may take action if an act by a state official leads to unlawful or improper prejudice of an individual – as is the case here.
In terms of the settlement agreement, the state agreed to withdraw whatever charges it may have had against me as ventilated in the Harris Report or in subsequent disciplinary hearing charges.
July 2012: further submission
In my latest submission to the Public Protector, I have noted that the Public Protector has not replied to my allegations that Premier Mokonyane’s conduct in making the Peter Harris Report public was unfair, unreasonable and unlawful, and that it caused unlawful and improper prejudice against me.
I have made the point that the Harris Report was mandated by the Gauteng Government, released to the media by Premier Mokonyane and canvassed at legislature level, and as such, relates to conduct in state affairs. Furthermore, it is clear from what is stated above that it constitutes unjustifiable exercise of state power, or abuse thereof, which resulted in unlawful and/or improper prejudice against me as the main subject of the Peter Harris Report. As a consequence it falls under the jurisdiction of the Public Protector as set out more fully in the Public Protector Act.
In terms of the Public Protector Act, the Public Protector has to consider the prejudice that I suffered both DURING and AFTER the investigation. After the Harris investigation Premier Mokonyane appointed Mr Jacobs as the new head of her Provincial Planning Commission and has, to the best of my knowledge, ceased further investigation against Jacobs.
I made the point that the Public Protector cannot remain silent about Mokonyane’s exploitation of my private life for political gain. I further disputed the assertion that the nature of the investigation does not fall under the jurisdiction of the Public Protector, as it is allegedly exclusively labour-related.
The settlement agreement
The Premier, upon receiving the Harris Report, instituted charges against me, which were subsequently withdrawn in a settlement agreement dated 20 November 2009. In terms of the settlement agreement the state agreed to withdraw whatever charges it may have had against me as ventilated in the Harris Report or in subsequent disciplinary hearing charges.
It is clear that it was not the intention of the parties to limit the word “charges” to disciplinary charges. In paragraph 11.1 of the agreement the Gauteng Government states that it “will not at any time make any adverse; untrue, or misleading statement” about me.
“Adverse” according to the Oxford dictionary means “negative and unpleasant”, “not likely to produce a good result”. Further, it cites an example to illustrate the use of the word: “They have attracted strong adverse criticism”.
It is obvious that both the charges against me considered in the Peter Harris Report and the charges from the disciplinary hearing would be negative and unpleasant, and not likely to produce a good result, and in terms of the agreement the Gauteng Government was accordingly prohibited from: releasing the report, publishing it in its totality or portions thereof, or circulating it.
Annexure A to the settlement agreement states: “The Department withdraws all charges against Mr Buthelezi”. The Oxford dictionary states that “all” means “completely”, “all inclusive” and that its intention is to the highest degree. An example of the word in use is: “all powerful”. If it was the intention of the Gauteng Government to withdraw anything less than all charges, it would have stated such. It is therefore an express written material term of the agreement and not merely implied.
Paragraph 2 of Annexure A states: “The Department lifts the suspension”. This further indicates that my resignation was not under a cloud of charges, whether as ventilated in the Peter Harris Report or in terms of the disciplinary hearing.
The payment itself is the maximum allowed legally for “unfair dismissal” and in itself serves as an acknowledgement that there is no cloud of charges.
My appeal to the Public Protector
I am seeking relief from the Office of the Public Protector in terms of the points raised below.
The Department of Roads and Transport represented by the then MEC Bheki Nkosi and Premier Mokonyane breached the agreement by:
- Failing to withdraw the charges against me that were ventilated in the Peter Harris Report – as it was contractually obliged to do.
- Releasing, publishing and circulating the said Report, which it was contractually prohibited from doing.
- Premier Mokonyane releasing the Report for political gain, which constitutes an abuse of power, for which Premier Mokonyane and the Department of Roads and Transport should issue a media release apologising publicly.
Alternatively, the Department should:
- Set aside the investigation and the Report on the grounds that the investigation was not reasonably and procedurally fair, and resulted in gross injustice to me.
- Prohibit Premier Mokonyane and the Department of Roads and Transport from releasing further information to the media and from encouraging the circulation, publication or distribution of the Peter Harris Report and any further adverse information or material concerning me.