Mkhwebane urges MECs, provincial HODs to urged to cooperate with investigations

Public Protector Advocate Busisiwe Mkhwebane has warned provincial executives and senior officials that not cooperating with her office’s investigations is an infringement that could lead to serious consequences.

In a statement issued on Wednesday, Mkhwebane said Public Protector investigators, who are dealing expeditiously with COVID-19 related matters, are being met with a degree of resistance from some members of the executive and senior government officials, including heads of department.

“Among the reasons provided for the apparent refusal to answer questions or avail information required for investigations is that such information has already been provided to other forums such as the Special Investigation Unit (SIU) and the Auditor-General of South Africa (AGSA),” said Mkhwebane.

The Public Protector is an independent constitutional institution with the power to investigate any alleged or suspected improper or prejudicial conduct in State affairs or in the public administration and in any sphere of government, to report on that conduct and to take appropriate remedial action. Such remedial action is binding unless reviewed and set aside by a court of law.

Unlike the Public Protector, the Special Investigating Unit (SIU) is a statutory body, whose investigations are prompted by presidential proclamations.

“Despite their varying mandates, the respective work of the Public Protector and SIU complements each other. This is why these institutions met separately last month, with a view to developing mechanisms for the investigation and auditing of COVID-19 cases in a collaborative manner.

“Officials cannot cherry-pick which institutions they want to account to. Answering questions from one institution is not a bulwark against accounting to another.

“The Constitution is unequivocal that organs of State must assist the Public Protector to ensure the institution’s independence, impartiality, dignity and effectiveness, and that no person or organ of state may interfere with the functioning of the institution,” said Mkhwebane, adding that her office will be issuing subpoenas as a way of expediting the investigations.

In terms of section 7 (1)(i) (b) of the Public Protector Act, the format and the procedure to be followed in conducting any investigation shall be determined by the Public Protector with due regard to the circumstances of each case. Section 7(4)(a), read with section 7(5), empowers the Public Protector to direct any person to submit an affidavit or appear before her to give evidence or produce any document, which has a bearing on a matter under investigation. She may also examine the person.

In addition, Section 11 of the Act provides that any person, who without just cause refuses or fails to comply with a direction of a request under section 7(4) or refuses to answer questions put to them under that section or gives answers which they know to be false, shall be guilty of an offense.

Any person convicted of such an offense shall be liable to a fine not exceeding R40 000 or imprisonment for a period not exceeding 12 months or both. –

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