Minister cites numerous flaws and inaccuracies in Public Protector's report

Court requested to review

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I have called this Media Conference to inform you that I am taking the Public Protector’s Report No. 21 of 2013/14 entitled “Docked Vessels”, on legal review.

I reaffirm my respect for Public Protector’s Office as established in terms of Section 181 with its functions set out in Section 182 of the Constitution of the Republic of South Africa.

Since the release of the Report on 4 December, I have had time to study its contents and I sought the opinion of two Senior Counsels. On 14 January my Director-General engaged the Public Protector indicating that the Department held a different view to that of Public Protector on the four allegations made against the Minister.

In response to the letter of the Director-General, the Public Protector wrote to the Minister stating that her investigation was concluded and the recommendations are final. The Public Protector further advised that if I wished to challenge the findings, I should engage the President or subject the Report to legal review. I am thus following the advice of the Public Protector by taking the report on legal review.

The Executive Summary of the Report states that “on analysis of the complaints  . . . eight (8) issues were considered and investigated” with the view of determining whether these acts constituted “improper conduct and maladministration.” Seven of the eight issues pertained to actions within the tender administration process which are administrative responsibilities which the Accounting Officer is responsible for.

Prior to, and during the course of the investigation and subsequent to the release of the Report, the Department conceded to administrative weaknesses and flaws in the administration of this tender. Hence the Department has, in consultation with National Treasury, developed an Implementation Plan to correct the weaknesses in the administration and management of this tender, as stipulated in the findings of the Report. The Public Protector, as required by the corrective actions stipulated in Report, was provided with a copy of the implementation plan on 28 February 2014. The Public Protector acknowledged receipt thereof and welcomed the Implementation Plan.

The body of the investigation does not correlate with the executive summary or the findings pertaining to the Minister. The investigation did not find a corrupt relationship between the Minister and Sekunjalo Marine Services Consortium (SMSC).

One of the eight issues under investigation, pertains to a request by the Public Protector during the course of the investigation, was directed at the Minister. Two days before Smit Amandla’s contract was due to expire, the Public Protector requested the Minister to defer the termination of this contract, to extend the contract by three months and to defer the “planned abrupt handover” of the services to the SA Navy. The Public Protector found the Minister’s rejection of this request to be “imprudent and led to fruitless and wasteful expenditure.”  

Hence the Public Protector proposes remedial action by the President, namely, that that the President should “consider taking disciplinary action against the Minister for her reckless dealing with state money and services resulting in fruitless an wasteful expenditure, loss of confidence in the fisheries industry in SA and the alleged decimation of fisheries resources and delayed quota allocations due to lack of appropriate research.

I want to unpack each of the above issues as these are central to the legal review.

Firstlythe Public Protector first claims there was “wasteful and fruitless expenditure”. The Public Protector providesno evidence for this. Instead the Report (in 11.1.1) acknowledges and commends the Department for having revoked the tender before work started hence no payments were ever made. More importantly, the Auditor General of South Africa (AG), who is the relevant and competent authority to express an opinion on fruitless and wasteful expenditure, expressed an unqualified audit opinion on the Department’s financial information for the period in question, confirming there was no fruitless or wasteful expenditure.

Further, there was no obligation on DAFF, to grant SMIT Amandla the three month handover extension. In light of the fact that DAFF had given it four months’s notice, the extension itself would have been irregular because it would have required certain procurement processes to be followed prior to it being granted. And most importantly, the contract with SAM had legally terminated, which the Public Protector herself acknowledged.

The Public Protector found that there was no evidence to suggest that the Navy did not have the competence. This was the main reason for her finding the handover to have resulted in fruitless and wasteful expenditure. It is therefore perplexing that despite finding the Navy to have been competent, the Public Protector makes such a finding against the Department and the Minister.

The reason for disciplinary action was that there had been a “loss of confidence in the fishing industry in South Africa”. There is no evidence for this statement in the investigation or the body of the report. As far as we know there was no scientific study or survey done to test this issue and one can only assume that it is a perception.

Thirdly, the reason for disciplinary action pertains to the “alleged decimation of fishing resources”. Again there is no evidence for this statement in the investigation or the body of the report. The state of fishing resources cannot be alleged. Instead globally the size of fishing resources is determined by highly specialised scientific investigations and extrapolated through the application of management tools and statistical concepts. 

The reason for disciplinary action pertains to the claim that the Minister was responsible for “delayed quota allocations”. This statement was made on 4th December 2013 and the quotas were only due for renewal on 31st December 2013. The finding was premature and has now been proven factually incorrect, since quota allocations were allocated on time.

I will be asking the North Gauteng High Court to declare that the Report, including the findings and recommendations, are reviewed, corrected, and/or set aside.

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