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Court Sets Aside Public Protector’s Ipid Report Because Of ‘Procedural Irregularities’

Court Sets Aside Public Protector’s Ipid Report Because Of ‘Procedural Irregularities’..  The high court in Pretoria has set aside the public protector’s report, dated September 16 2019, on an investigation of procurement irregularities allegedly made by Independent Police Investigative Directorate (Ipid) officials.

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Court Sets Aside Public Protector's Ipid Report Because Of 'Procedural Irregularities'

 

In her report, public protector Busisiwe Mkhwebane found Ipid officials had engaged in procurement irregularities and maladministration when appointing Thereza Botha as deputy director of its national specialised investigation team in 2017.

The eight Ipid officials, including executive head Robert McBride and Botha, applied to review the report.

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The main thrust of their submissions was the public protector’s process in arriving at its findings was irrational.

They said Mkhwebane could not have arrived at an impartial and informed decision due to the irregularities identified, including that the investigator, Vusi Dlamini, was biased and should have been removed from the investigation and Mkhwebane’s office failed to record the material evidence it relied upon.

Ipid officials said Dlamini was conflicted in various ways.

Not only had Dlamini and the complainant Cedric Nkabinde previously worked as colleagues, but they were in contact with each other shortly before the complaint was lodged and thereafter.

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The public protector, though alerted to the conflict, failed to remove Dlamini from the investigation.

Mkhwebane — through her legal representative — told the court there were no facts in the report demonstrating her office was biased against any of the Ipid officials.

She said the previous association of Dlamini in itself was not a reasonable basis for an apprehension of bias.

In her judgment on Wednesday, judge Harshila Kooverjie said the Public Protector Act gave her additional powers to be proactive and ensure the office acted at the highest level of fairness and impartiality.

Kooverjie said after considering  the facts, she found the reasonable apprehension of bias had been met.

The public protector was advised, before the investigation was completed, of the probable conflict of interest.

“In my view, the public protector should have erred on the side of caution and taken the necessary steps in terms of section 3 (15) of the Public Protector Act.”

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The section provides that if any person conducts an investigation while having an interest in the matter being investigated, the public protector may take such steps as she deems necessary to ensure a fair, unbiased and proper investigation.

“This would have ensured an impartial and unbiased investigation,” Kooverjie said.

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What was more concerning was that the interviews between Dlamini and the complainant pertaining to the investigations were not recorded.

“It was necessary that all such interviews and discussions pertaining specifically to the investigation be recorded.”

Kooverjie said the public protector was required to afford the party a hearing when it appeared that a particular remedial action, which adversely affected them, might be taken. This did not happen in this case.

The public protector conceded that this omission constituted a material error of law.

“On this issue alone, I find that the remedial action should be set aside on the basis of procedural unfairness.”

Kooverjie said the Ipid officials attempted to illustrate various instances where the public protector failed to conduct the investigation “impartially and with an open mind”.

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It was argued that the public protector ignored the evidence and failed to investigate the matter further when Ipid furnished the office with substantial and material evidence.

“I do not deem it necessary to extrapolate on the contentions raised at this point, as I have found that the public protector’s conduct is wanting in terms of procedural fairness and procedural rationality,” Kooverjie said.

 

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