Court rules for Lekwene, sets aside protector’s findings
THE COURT has set aside the public protector’s findings that the former Northern Cape MEC for Finance, Economic Development and Tourism, Maruping Lekwene, acted unlawfully when he appointed Vincent Mothibi as the chief executive officer (CEO) of the Northern Cape Gambling Board.
Northern Cape High Court Judge Mpho Mamosebo, who delivered her judgment this week, handed out sharp criticism of Public Protector Busisiwe Mhkwebane’s recommendations that stated that Lekwene had acted “improperly” and in contravention of his executive ethics.
The public protector received an anonymous complaint on August 3, 2020 pertaining to the secondment of Mothibi as the CEO of the Northern Cape Department of Development and Tourism to the Northern Cape Gambling Board over a period of three years with effect from September 2, 2019.
The appointment was made by Lekwene, who was the MEC for Finance, Economic Development and Tourism at the time.
According to the complaint, Mothibi did not qualify for the position of CEO as he did not meet the requirements and did not have the competencies, while no recruitment processes had been followed to fill the vacancy.
It was indicated that the secondment should only be for 12 months and not three years and that the secondment was not arranged between the gambling board and the department.
During the proceedings, the legal representative for Lekwene in his capacity as MEC for Health objected to the right of appearance of TM Sithole, the legal representative for the public protector.
Sithole was an admitted attorney in good standing with the legal practice council but was not robed, while his name is not registered on the roll of practising attorneys.
He made the submission that while he was the head of the legal division rendering legal advice to the public protector he had an admission certificate of an attorney.
Mamosebo arrived at the conclusion that as a non-practising attorney, Sithole was not permitted to represent the Office of the Public Protector as well as Mhkwebane in her personal capacity.
The public protector in her report found that the decision of the MEC to second Mothibi was in violation of the Public Service Act and regulations and therefore improper and amounted to maladministration.
She believed that the MEC was in violation of the executive ethics code and that it was not made in good faith or the best interests of governance and consistent with the integrity of his office.
Mhkwebane stated that the appointment was not in accordance with the provisions of the Northern Cape Gambling Act and was therefore “improper and constituted maladministration”.
She instructed the premier to take appropriate steps to discipline Lekwene for his “improper conduct relating to the irregular secondment” of Mothibi as the CEO of the gambling board.
Mhkwebane also ordered the MEC for Finance, Economic
Development and Tourism to institute proceedings for judicial review of Mothibi’s secondment and appointment.
Lekwene, in his reply to the public protector, conceded that the secondment for 36 months was “erroneously made and was corrected” before the public protector had launched her investigation.
He explained that the correction was made following advice from officials in the department and not because of the complaint, whereby it was an interim appointment pending a rationalisation process and the provincial moratorium.
Lekwene explained that the Northern Cape Gambling Board could not appoint the CEO because of the moratorium.
He stated that he had consulted the board’s chairperson, advocate Itemogeng Steenkamp, before making the appointment, as the CEO position had been vacant since 2013.
According to Lekwene, his predecessor, MEC Mccollen Jack, had also intervened by seconding Heidi Dipico to act as CEO.
He indicated that all the interventions in respect of interim CEO appointments were made in consultation with the chairperson of the
board.
Lekwene contended that the Gambling Act and the CEO regulations do not prescribe minimum academic qualifications for the CEO.
“The possession of a Bachelor of Commerce, Law or Public Administration degree is not a minimum requirement and the three-year diploma that Mothibi possesses coupled with his extensive experience that he possesses in the public service made him a suitable candidate as an interim CEO.”
He concluded that his actions were in the best interests of the gambling board, while his intentions were aimed at good governance and administration.
He denied that he contravened the Constitution, which required him to act in accordance with a certain code of ethics.
Lekwene accused Mhkwebane of failing to conduct a proper, full and unbiased investigation and was “irrational”, where she failed to take relevant evidence into account in her findings.
He stated that the remedial action cited was “not authorised in law”.
Mamosebo noted that Mothibi’s fixed-term contract as CEO of the gambling board had been extended to March 31, 2021 by the current MEC for Finance, Economic
Development and Tourism, Abraham Vosloo, until the post was filled or the rationalisation process was concluded.
“Vosloo indicated that the secondment was made on Lekwene’s discretion to ensure the continued functionality of the gambling board as an entity falling within his executive authority.”
Mamosebo found that the public protector’s findings were unsubstantiated.
“It is incomprehensible and not supported by any empowering legislation for the premier to exercise such disciplinary powers. The action will not be competent because the relationship between the premier and the MEC is not of an employer-employee relationship.
“In my view, the premier can, if not satisfied with the MEC’S conduct or performance, dismiss him from his office.
“It remains inexplicable why the public protector would assume powers to order the premier of the Province to report to her. It is further incomprehensible why she would want to usurp the functions of the premier by ordering the dismissal of the MEC, a decision completely outside her domain.
“It follows that the remedial action ordered by the public protector stands to be reviewed and set aside.”
Mamosebo believed that the public protector had not followed proper procedures.
“The lack of substance in the investigation coupled with her irrational findings were not keeping with her constitutional mandate and duty.
“Her serious and reckless dereliction of duty exacerbated by her complete disregard of the applicable legal principles as enunciated in the numerous court judgments.
“Her lack of following proper procedures regarding remedial action amounts to nothing more than contemptuous disregard for the court judgments.”
She stated that there was no justification for Mkhwebane to pay the costs in her personal capacity.