Polity.org.za Audio Articles

The unlawful appointment of a Limpopo government official implicated in the VBS Mutual Bank scandal and another who has a criminal record for fraud, are expected to test President Cyril Ramaphosa's "renewal" project ahead of his visit to the province on Friday.

Ramaphosa will host the presidential imbizo - or community gathering - in Limpopo amid a scenario in which provincial government officials are blatantly ignoring Cogta MEC Basikopo Makamu about the reversal of two appointments he did not concur with, making them invalid in line with the Municipal Systems Amendment Act.

The appointment of Morris Maluleke as municipal manager at the Mogalakwena Local Municipality was ruled "unlawful" by the Limpopo High Court in Polokwane in September last year, but Maluleke is still in the post. Mogalakwena is an ANC-led municipality.

News24 has seen a report dated May 2023 by the Limpopo ANC provincial executive committee, which states that the municipality spent more than R20-million in legal fees trying to overturn the High Court's judgment.

The party conceded that the money could have been used to deal with "service delivery issues", including "sewer spillage, water provision and [the] patching of potholes".

Spokesperson Jimmy Machaka authored the Limpopo ANC report. Machaka sits on the provincial executive committee.

Speaking to News24 on behalf of the Limpopo ANC, Machaka confirmed authoring the May report and said the party "supported the appointment of Maluleke". He added that it would allow Mogalakwena "time and space" to deal with the court matter.

"We are worried about the amounts [spent], but it is something that is out of our control," Machaka said.

The next court date for Mogalakwena's leave to appeal application is 4 August.

But sources in Limpopo said the municipality would ask for another postponement as part of an alleged delay tactic to stall the removal of Maluleke as the municipal manager.

"They are abusing municipal funds because they know they will get away with it. There is no hope of the High Court's decision being overturned, and Maluleke knows this," said one source, who asked to remain anonymous.

VBS scandal and criminal records

According to a national government warning letter dated April 2022, which News24 has seen, Maluleke deposited R50 million into the now-defunct VBS Mutual Bank in 2018 while he was the chief financial officer of the Madibeng Local Municipality in the North West.

It is against the Municipal Finance Management Act for municipalities to deposit money into mutual banks.

Mbulelo Sigaba, the acting director-general of institutional development in the national co-operative governance department, warned the Mogalakwena council in his April 2022 letter that Maluleke, although he resigned before he was disciplined, had a tainted past related to VBS.

Only R20-million of Madibeng's money was recovered, Sigaba said.

Sigaba's letter read, "Although Mr Maluleke does not appear in the record of dismissed staff, the [Mogalakwena] municipality's attention is drawn to the fact that, while acting as chief financial officer and municipal manager, respectively, at Madibeng Local Municipality, the municipality was allegedly implicated in the VBS Mutual Bank investment."

In May, Mogalakwena, according to a document authored by MEC Makamu, appointed Kulungwana Ngomana as its chief financial officer despite a 2017 fraud conviction.

Makamu, in a document dated 18 May 2023, wrote that the Municipal Finance Management Act stipulated that anyone found guilty of corruption or fraud should serve a 10-year cooling period "before a person may be redeployed in a municipality".

"The State Security [Agency] report indicates that the preferred incumbent has committed fraud.The municipality is requested to comply with all legislative requirements pertaining to the appointment of senior managers," Makamu wrote.

His document was addressed to Mogalakwena Mayor Ngoako Taueatsoala, who, along with Maluleke, ignored Makamu's di...

In a unanimous judgment written by Deputy Chief Justice Mandisa Maya, the Constitutional Court upheld President Cyril Ramaphosa's suspension of Public Protector Busisiwe Mkhwebane and dismissed her application to halt the Section 194 inquiry into her fitness for office on Thursday.

In June 2022, two days after Mkhwebane informed him that she was investigating the Phala Phala matter, Ramaphosa suspended her.

It came after letters went to and fro since March about her suspension, pending the Section 194 inquiry, which started in July.

Mkhwebane applied to the Western Cape High Court to have the suspension overturned and to have the Section 194 process declared unlawful.

In September, a full Bench of that court appeared unconvinced by the bulk of Mkhwebane's challenges to the impeachment process against her, but it found that "from the objective facts, the decision of [Mkhwebane] to investigate the president and to put 31 questions to him [about the break-in], prompted the president not to wait a day more and to immediately suspend her".

Given that Ramaphosa was "sitting with a letter from [Mkhwebane] with a long list of questions" that he was required to answer within 14 days at the time he suspended her, the High Court found that to "suggest that such a suspension would not have any effect on delaying the course of investigation would be a difficult proposition to convincingly sustain".

"Thirdly, the expansive nature of the questions that the president was required to answer in the said short space of time in respect of events that took place some two years ago may well have caused the president to conclude that 'there she goes again' in those circumstances, rather than to have to contend with [Mkhwebane], he was better off with any person but [Mkhwebane]," it stated.

But the apex court didn't agree after the Democratic Alliance and Ramaphosa appealed.

Mkhwebane filed a cross-appeal, which the apex court found to be meritless.

Justice Maya said they found that the mere fact that Mkhwebane was investigating Ramaphosa, wasn't enough to say there was a conflict of interest when he suspended her.

The suspension didn't have any benefit for him, as it did not hamper the investigation, and there was no evidence that he suspended her due to the Phala Phala investigation.

"It cannot be said that the president's decision was irrational," Maya said.

Furthermore, the court found Ramaphosa had "rational reasons" for the suspension, including allowing her to prepare for the impeachment proceedings. The suspension wouldn't cause her irreparable harm, it added.

The court also noted that the independent panel Parliament had appointed found that there was a prima facie case for her removal, and that the court itself made "grave" findings against her in the past.

Mkhwebane must pay part of the costs personally.

Arguments were heard in November.

Mkhwebane, and the African Transformation Movement have complained about the long wait for a judgment. Mkhwebane said the judgment would be merely academic.

On 30 June, Acting Public Protector Kholeka Gcaleka released the report on Phala Phala, which cleared Ramaphosa.

After several delays, Mkhwebane didn't conclude her testimony before the Section 194 inquiry and refused to answer the committee's questions, which it had to submit in writing.

The committee will now only consider the evidence already before it is expected to adopt its report on 28 July.

Mkhwebane's term expires on 14 October, at which time she will receive a gratuity of around R10-million.

The Constitutional Court has found that the Administrative Adjudication of Road Traffic Offences Act (Aarto) is constitutional.

On Wednesday, the apex court overturned an order of the Gauteng High Court in Pretoria, which had found Aarto to be unconstitutional and invalid and that it should be scrapped in its entirety.

In a unanimous decision delivered by Chief Justice Raymond Zondo, the justices agreed that Aarto and the way notices would be served to alleged offenders was not inconsistent with the Constitution. The court also concluded that Parliament had the competence to pass the Act.

"It cannot be said that Parliament had no power to make this law," Zondo said while delivering the judgment.

He added that the court had rejected Outa's contention that Aarto removed certain powers from municipalities and gave them to other state organs.

The Act set up a single national system of road traffic regulation, to hold motorists to account for traffic violations.

The Independent Electoral Commission (IEC) has verified the registration of the Congress of the People (Cope) as a political party.

This comes after news reports alleged that the party was deregistered.

Party spokesperson Dennis Bloem has since clarified that Cope has deregistered as a company by the Companies Intellectual Properties Commission and remains a political party.

The IEC confirmed on Wednesday that "the Congress of the People is registered with the Commission as a political party in terms of Section 15 (A) (1) of the Electoral Commission Act 51 of 1996."

However, the IEC noted that it reserves the right to cancel the registration of a party if it finds that a party no longer has the intention to participate in an election; when a party is not represented in the National Assembly, a Provincial Legislature or Municipal Council; and if a party has not participated in a national, provincial or municipal election after the date of its registration.

Cope is facing leadership battles, with the recent expulsion of the party's deputy president Willie Madisha and elections secretary Mzwandile Hleko.

Police Minister Bheki Cele on Wednesday assured citizens that the recent attacks on trucks were not linked or related to the 2021 July unrest.

Cele was speaking at a media briefing in Pretoria, to provide an update on criminality targeted at trucks. He said there was no evidence before the South African Police Service (Saps) to suggest that the targeting of trucks was in any way linked to the July insurrection.

This week marks two years since the country witnessed mass looting, acts of arson and wanton destruction in KwaZulu-Natal and Gauteng province, where 354 people lost their lives as a result of the mayhem.

"I wish to take this opportunity to allay any fears that what transpired in July 2021 will repeat itself," said Cele.

To date, 67 people have been arrested in 11 cases related to the July insurrection.

Cele noted that police were also, in fact, investigating 107 cases in KwaZulu-Natal related to the torching of trucks since 2018.

"We have a capable State that has learnt from the past. The security apparatus is working in unison and the Security Cluster is in a better state to respond to any eventuality," he said.

Cele highlighted that 21 trucks had been burnt since Sunday, nine in KwaZulu-Natal, three in Limpopo and nine in Mpumalanga.

Intelligence suggests that these attacks on trucks may be business related as opposed to random acts of criminality.

"Evidence before us points to organised, coordinated and sophisticated operations that seek to undermine and sabotage the State," Cele added.

He noted that 12 persons of interest had been identified through investigations and intelligence collection.

"These people are around the country but more specifically they are concentrated in two provinces, KwaZulu-Natal and Mpumalanga," he stated.

He explained that a plan of action from the police was already underway.

"No matter the motive, the country's law enforcement remains on high alert and is hard at work at preventing more attacks but also finding these individuals or gangs of thugs hell-bent on causing havoc on our roads. It is on this score, that the Saps has heightened police visibility and is leaving nothing to chance in all provinces," he added.

Cele noted that all major truck routes had been secured and regular patrols were being conducted along identified high-risk routes.

Meanwhile, he added that the Saps had noted incorrect media reportage of trucks being torched in Gauteng, as part of the coordinated truck attacks.

He said the Gauteng Provincial Commissioner had confirmed that two trucks were involved in two separate accidents.

He explained that the Saps remained adamant that both these incidents were unrelated to the coordinated and planned attacks on trucks and should be reported as such.

Police Commissioner Fanie Masemola said the Saps would maintain the deployment of law enforcement agencies on highways until arrests had been made.

The Public Servants Association (PSA) on Tuesday expressed concern that government is using the introduction of the National Health Insurance (NHI) to campaign for the 2024 elections.

The PSA is also calling on President Cyril Ramaphosa to reconsider the NHI and instead allow for further discussions to clarify unanswered questions and concerns raised by relevant stakeholders and warned that if that is not done, the NHI will be a “dead elephant” like the e-tolls.

It said while it supports the rehabilitation of the public health sector, the PSA’s view is that members, like other citizens, must reserve the right to choose whether to use public or private healthcare.

The PSA warned that the current single funding model for the NHI will plunge the citizenry into a deeper financial crisis as they will be burdened to fund this initiative.

“The idea that workers might be expected to pay for private medical insurance and the NHI simultaneously, induces anxiety amongst public sector employees. The chief priority of health reform in South Africa should be the rehabilitation of the public health sector. This can be best achieved by a competent, non-partisan public health service, free of corruption and political interference,” said the union.

The union is also concerned about the future of medical schemes, especially as it relates to employees’ access to medical aid schemes.

It further warned that the NHI Bill may reverse the gains workers have made in respect of access to quality healthcare.

The committee chairperson for the Section 194 Enquiry into Public Protector (PP) Advocate Busisiwe Mkhwebane’s fitness to hold office, Qubudile Dyantyi, emphasised on Tuesday that the deadlines set by the committee for Mkhwebane to submit written notice will not be extended any further.

This after Mkhwebane failed to meet another deadline on July 7. She had also missed a June 19 deadline to submit additional information for the committee’s consideration.

The committee was established on March 16, 2021 to conduct a constitutional enquiry into the PP’s fitness to hold office.

Dyantyi said up to this point, Mkhwebane had failed to meet any of the deadlines stipulated in the new path that the committee was forced to take so as to fulfil its constitutional mandate and finalise its work.

He explained that, according to the new timetable, Mkhwebane had to submit written notice to the committee secretariat indicating whether she will make a closing statement and the format of her statement by no later than July 7.

He noted that the committee’s July 28 deadline for the consideration of the draft report for its adoption would still stand.

“In fact, to the contrary, her continued non-response to questions and deadlines means that we may produce a report much sooner than initially planned because there would be no reason for the chairperson not to direct evidence leader to do the summation earlier than planned or to convene a committee meeting earlier than 28 July if this is practical,” he added.

He noted that the committee provided an opportunity to Mkhwebane to explain her version of the allegations against her, but she failed to respond.

“This is not the first deadline missed by Adv Mkhwebane since the committee was forced to forge a new path after various challenges and delays arose in relation to the PP’s legal assistance, even though the Public Protector South Africa made another R4-million available in additional funds and the PP was granted permission to retain all three of her counsel at increased fees,” explained Dyantyi.

Last week Mkhwebane also ignored the deadline to respond to written questions posed by Members and evidence leaders. Mkhwebane was also due to notify the committee by June 19, whether she would be responding to questions in writing or orally.

Dyantyi noted that Mkhwebane was granted another opportunity, until June 22, to submit any additional affidavits or documentation in support of Part B of her statement or in relation to the evidence leaders’ presentation to the committee on Part A of her statement to the extent that there is a part that was not addressed in her oral evidence or written statement.

“Adv Mkhwebane did not meet the deadline of 19 June and did not submit any additional information for the committee’s consideration. On 25 June 2023, two sets of questions - one by Members of the committee and one by evidence leaders - were sent to Chaane Attorneys, Adv Mkhwebane’s attorneys of record. This due date was also not adhered to,” he added.

The Democratic Alliance (DA) and Inkatha Freedom Party (IFP) in KwaZulu-Natal on Tuesday signed a Service Delivery Pact, to bring much needed stability to a number of municipalities where both parties are involved.

The agreement has been six months in the making and follows on from the parties’ successful cooperation in by-elections to win wards from the African National Congress (ANC).

The agreement will ensure that where each party holds seats in a hung municipality, the DA and IFP will work together to improve service delivery and better the lives of residents.

The parties said in a joint statement that they shared a strong commitment to Constitutionalism, the rule of law and service delivery improvement.

“We are also parties of government that govern in various local municipalities across the country and are only two of three parties that have governed a province,” they pointed out.

Both parties have pledged to ensure that communities have access to basic service delivery and will also relieve residents and businesses from crippling loadshedding by accessing affordable and sustainable electricity.

The DA and IFP said they would bring in investment and jobs to the local economy and make it easier for businesses to trade. The parties have promised to support devolution of power within the constitutional and legislative framework and eliminate corruption and patronage networks.

Both parties will also promote multilingualism and enhance the province’s heritage landscape.

The DA and IFP have included 15 priorities that the joint caucuses will set to work on to radically change the landscape of local government in KZN, if successfully implemented.

The parties accused the ANC of wrecking local government across the province.

“That is why we believe we are able to come together and put the interests of citizens first. In the interests of transparency and to gain the trust of voters in these municipalities we will also be publishing these agreements so that they can hold us accountable. This is a first for KZN and a fresh approach from the shady ANC/Economic Freedom Fighters coalition agreement that is built purely on corruption and access to state resources,” said the parties.

Both parties explained that it is their collective view that they can achieve more together than separately, as well as being able to learn from one another.

“We are guided by the approach of IFP Founder and President Emeritus Prince Mangosuthu Buthelezi who has sought to bring parties together from across the political, religious and racial divide for over 40 years and the current work that DA Leader John Steenhuisen has been doing to bring various opposition parties together to unseat the ANC in next year’s election,” parties added.

President Cyril Ramaphosa noted on Monday that for government to end poverty, it needs an economy that grows, attracts investment, creates jobs and allows new companies to emerge and thrive.

Ramaphosa wrote in his weekly letter to the nation that the provision of comprehensive social protection will not, on its own, end poverty or inequality in the country’s society.

This month, South Africans will celebrate the life and work of former President Nelson Mandela, on Mandela Day on July 18.

“In everything we do this month to honour the founding father of our nation, let us recall his observation that, while poverty persists, there is no true freedom. Since the advent of democracy, we have dedicated great effort and resources towards alleviating poverty and reducing inequality. Through its substantial social protection programmes, government has provided vital support to millions of South Africans, lifting many out of extreme poverty and meeting many of their basic needs,” he said.

Ramaphosa said social protection in South Africa goes far beyond the provision of social grants for the elderly, children, people with disabilities and military veterans.

He added that it goes beyond the work of the Unemployment Insurance Fund, which provides income support for unemployed workers, or the Compensation Fund, which supports those involved in workplace accidents.

“It encompasses all support provided to South Africans, mainly the poor, through what has become known as the ‘social wage’. This includes the provision of free basic services, health care, basic education, higher education, social housing and transport,” he said.

Ramaphosa explained that the country’s policies and programmes needed to work together to build an inclusive economy and provide social protection to the poor and unemployed.

He added that a growing economy provided the funds government needed to strengthen its social protection measures, and that the support that poor people received, especially through access to education and health, enabled them to better contribute to that economy.

“Because expansion of social protection can only take place at the pace and scale the fiscus can afford, we are focused on growing our economy and developing sustainable solutions to support pro-poor spending. Through an integrated and comprehensive system of social support, we are not only meeting our collective responsibility to the most vulnerable in society, we are also investing in our country’s future,” he said.

The North Gauteng High Court in Pretoria has granted the government's application to place the South African Post Office (Sapo) in business rescue, putting a halt to ongoing liquidation proceedings and paving the way for a R2.4-billion taxpayer bailout.

Sapo was placed in provisional liquidation in February due to its failure to pay rent and other liabilities, but its provisional liquidators did not oppose the application.

The judgment, delivered by Judge Elmarie van der Schyff following an urgent hearing in Pretoria, confirmed the appointment of Anoosh Rooplal and Juanito Martins Damons as joint interim rescue practitioners. Roolpal has been overseeing the liquidation of VBS Mutual Bank since 2018 and will now also help guide the process of looking to prevent Sapo from being wound up and its assets sold off.

The appointment of the business rescue practitioners must be ratified by a meeting of the majority of Sapo's creditors.

Judge Van Der Schyff said placing the state-owned utility in business rescue would allow the government to inject the much-needed R2.4-billion in funding it has committed to providing.

"It is gleaned from the minister's papers, and no objective reason exists to doubt the correctness of the evidence provided under oath, that Cabinet has not only pledged to provide Sapo with the initially earmarked R2.4-billion, but also indicated its intention to support Sapo's application for an additional R3.8-billion in the October budget," she wrote in the judgment.

In addition to the already announced cash bailout, "there is a further possibility of continued government funding to see Sapo through the business rescue process," the state's application reads.

The Sapo's provision liquidation came after a case brought by property company Withinshaw. It also owes hundreds of millions of rands in unpaid salaries to its staff, retirement and medical funds, the SA Revenue Service, landlords, and other suppliers.

Turnaround hopes

Mondli Gungubele, the communications minister, is pinning his hopes that the business rescue process - which offers temporary protection against creditors - will save as many jobs as possible.

"The purpose of this application is to avoid the destruction of the Sapo by placing it under business rescue," said Gungubele in the court application. "This will give Sapo the space and time it needs to restructure its affairs and implement a turnaround plan under the supervision and direction of the business rescue practitioner. There is a reasonable prospect of Sapo being rescued."

Sapo has been making annual losses of more than R2-billion the past three years. Of its 1 266 branches, fewer than a quarter were profitable, its 2022 annual report reads.

To return Sapo into an operational state and solvency, the minister's plan approved by Cabinet and filed as part of the court application, seeks to reduce about R1.33-billion in employee costs. This would cut 7 000 jobs in Sapo, leaving just under 5 000 employed by the postal services company. Sapo's current workforce is just under 12 000 employees.

"The harsh reality is that the facts point to it that Sapo's workforce needs to be extensively curtailed for Sapo to survive, but business rescue proceedings are prone to have a less severe impact on the workforce than final liquidation," wrote Judge Van Der Schyff.

This remedy will be robustly opposed by the trade unions that represent employees at Sapo. The Democratic Postal and Communications Union (Depacu), which was represented in the court proceedings, said it would resist any attempt to cut jobs at the utility. The union's secretary general, Livy Zwane, said Depacu is the majority union representing about 63% of the Sapo employees.

The funding committed by the government could be increased as the government has already indicated its support for increased funding should the entity be placed in business rescue, said Gungubele in the court application. No state funding, however, would be available should Sapo...