EX-SOL­DIER QUES­TIONS MKHWE­BANE’S EF­FI­CACY

CityPress - - News - SETUMO STONE setumo.stone@city­press.co.za

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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