Reports and Publications

REPORT IN TERMS OF SECTION 8(1) ANI) (2) OF THE
PUBLIC PROTECTOR ACT, 1994 (ACT 23 OF 1994)

The Speaker, Honourable Members of the National Assembly the Chairperson and Honourable Members ofthe National Council of Provinces

I have the honour to submit a special report in terms of section 8(1) and (2) of the Public Protector Act, 23 of 1994 regarding my investigation of allegations of nepotism in government.

6.1	Appointment of the hind of the former MEC for Education: North-West Province (Ms M J Gaoretelelwe) as a Deputy Director in that Department
6.2	Appointment of the Director of Agriculture in Gauteng, who is the spouse of the Minister for Agriculture and Land Affairs
6.3	The brother of the Chairperson of the Gauteng Legislature's Standing Committee for Arts Recreation and Culture is the Superintendent-General of Education in Gauteng
6.4	The Chief of Staff in the Gauteng Premier's Office is the husband of the Chairperson of the Gauteng Standing Committee on Welfare
6.5	Mr L Jacobs, brother of Gauteng MEC for Welfare and Population Development, Mr I P Jacobs, has been promoted from the position of a teacher to a senior management post in the Department of Education in Gauteng (grade 5 post)
6.6	A family member of the MEC for Housing and Land Affairs, Gauteng (Mr D Mofokeng) has been appointed Chief Executive Officer of the Eastern Gauteng Services Council
6.7	The appointment of the spouse of the Minister of the Public Service and Administration as Deputy Director-General in the Department of Foreign Affairs
6.8	Mr G M Budlender who is allegedly a friend of the Minister for Agriculture and Land Affairs, has been appointed Director-General of the Department of Land Affairs
6.9	The spouse of Mr Budlender (Director-General: Land Affairs) has been appointed special advisor to the Minister for Agriculture and Land Affairs
6.10	The husband of the Deputy Minister of Justice had been appointed the High Commissioner in London
6.11	The appointment of the spouse of the Minister of Defence in the South African National Defence Force
6.12	Dr K N Ginwala, sister of the Speaker of the National Assembly, was appointed Ambassador Extraordinary and Plenipotentiary of the Republic of South Africa to the Republic of Italy
6.13	The allegation that ANC MP's spouses have been appointed to the Gender Commission
6.14	Mr Azhar Cachalia, the brother of Mr Firoz Cachalia who is the leader of the Gauteng Legislature, has been appointed the Secretary of Police and heads the National Crime Prevention Strategy
6.15	The appointment of Dr L Patel as Director-General of the Department of Welfare. She is Mr Azhar Cachalia's spouse, who is the Secretary for Safety and Security
6.16	Mr Z Sisulu, brother of the ANC Chief Whip, Mr M Sisutu, the son of ANC veteran, Mr W Sisulu, was appointed as the Group Chief Executive of the SABC
6.17	The appointment of the spouse of the former MEC for Environmental Affairs in Mpumalanga, Mr D S S Mkhwanazi, as a deputy director
6.18	Mr D S S Mkhwanazi's daughter has been appointed an assistant director
6.19	The appointment of Mr A Z Mkhwanazi, who is Mr D S S Mkhwanazi's brother, as an assistant director in the Mpumatanga Department of Environmental Affairs
6.20	The appointment of Mr D S S Mkhwanazi's sister-in-law, Ms J Mtotshw

ANNEXURE A: Request for an Investigation of "ANC Nepotism" by the Executive Director of the National Party

This report is submitted to the National Assembly and the National Council of Provinces by virtue of the provisions of section 182(1)(b) of the Constitution, 1996 and section 8(2) of the Public Protector Act, 1994. It deals with an investigation by my office of allegations of nepotism in Government at both national and provincial levels.

The Executive Director of the National Party Federal Council (and a Member of Parliament) submitted a letter to my office on 29 October 1997 which refers to a copy of a motion that was tabled in Parliament on 21 October 1997 in connection with "ANC Nepotism". A copy of the motion is attached as "Annexure A". The gist of this motion is a contention of occurrences of nepotism based on the appointments at different levels of government and the public service of persons that are related as family or friends. Examples are quoted and I am eventually requested in this motion "to investigate the extent of new senior appointments since May 1994 that have family connections in political parties, Parliament and/or the Cabinet. Such an investigation should look comprehensively at all three levels of government, as well as parastatals, to ascertain the extent ofthis massive problem".

Attached to Annexure A were also media releases by the Media Director of the National Party that refer to allegations of nepotism, which included a schedule of further examples. Neither the motion nor the intention that my office would be requested to investigate the mentioned allegations was discussed with me or my staff prior to the motion being tabled and the media being notified.

Section 182(1) provides that the Public Protector has the power to investigate any conduct in state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice.

"Marriage might be the greatest of social institutions, but when it comes to employers, it is among the most scorned"¹. To a certain extent the same applies to other relatives and friends. The word "nepotism" is defined as favouritism shown to relatives or friends in conferring offices or privileges. It is derived from the word nepote which means nephew, apparently, originally with reference to popes with illegitimate sons who were called "nephews"².

In bygone African tradition patronage was, in some instances, regarded as a virtue rather than something to be shunned. In this regard Prof C J K Tanda³ once remarked as follows:

"There is much to excuse nepotism. Any man rising to a place of importance in politics will be surrounded by relatives and friends looking confidently to him for patronage, the traditions of centuries leave them in no doubt that he will provide for the needed patronage, and that if jobs do not exist they will be created. The politician may grasp the constitutional idea himself, but it is difficult for him to explain to his kinsmen that his political career will be threatened and jeopardized, and that to pay the price may cost him to lose his job. Consequently the life of Ministers and other people of importance is made burdensome by nagging and increasing demands, as they find themselves entangled in the familiar net of family obligation."

Of course governments all over the world, including Africa, have evolved and it is now globally accepted that nepotism is wrong.

To be more specific, while the employer's choice of employment relationship is largely unfettered, there are a number of statutory curbs with regard to its selection of employees for employment, for example the prohibition on the employment of certain minors etc. It is further accepted that the employer's choice of employees is also meddled with where both the reality and the appearance of conflict of interest in employment should be avoided. The opinion is held that this is in particular the case where the salary, fees or compensation of such appointee is to be paid from public funds.

The matter is, however, not that simple. Even though anti-nepotism policies might be feasible in the public sector, the circumstances and facts of each case should be taken into account. An applicant has a right to just administrative action and it is also in the interest of the employer to seek the best qualified applicants for positions and to further the careers of those employed regardless of whether they have relatives already employed at the relevant state institution. Furthermore, I do not think it would be reasonable to expect family members of public representatives to be excluded from pursuing a career in the civil service. It would accordingly appear that equity or fairness should be the main principle in determining the feasibility of the appointment with reference to the circumstances of the particular case.

Appointments in government or the public service could, in my view, only be regarded as nepotism and would therefore be improper, should such an appointment be made with a view to favour a particular candidate because he/she is related to the person who makes or controls the appointment. However, in circumstances where a properly qualified candidate is appointed by means of proper procedures and in circumstances where there is no indication that such appointment was influenced in any way by another person in the public rector or service who is related to the applicant, the mere fact that the two people concerned are both employed by the state could not be regarded as a pointer towards nepotism.

The allegations of nepotism by the National Party, unfortunately, gave no substance to the examples quoted in the different documents. It is merely stated, for example, that: "taking into account the many instances of family connections that can be cited and that give rise to valid questions as to whether the ANC is turning Government into a family business; and citing the fact that senior Cabinet members' wives are in top Government jobs, MEC's family members are appointed to senior positions, MPL's brothers and other family get top executive positions..." No specific mention is made of any evidence of favouritism or impropriety.

The request by the National Party that my office should conduct a general investigation could not be adhered to. Taking into account the size of government at the different levels as well as the resources available to my office, such an investigation would be contraproductive. Most importantly, such a request does not conform with my brief which is very clearly not to investigate general complaints against government, but rather specific issues of improprieties and prejudice.

Although the National Party (NP) did not provide my office with detailed substance for the allegations of nepotism, I took the view that only an investigation of the examples that have been stated would, in any event, enable me to establish whether the complaint of nepotism had any merit. I consequently, decided that the cases that have been quoted in the complaint should be investigated individually to establish whether or not the complaint can be justified.

6.1 Appointment of the husband of the former MEC for Education: North West Province (Ms M J Gaoretelelwe) as a Deputy Director in that Department

Our investigation revealed that this matter was raised by the the NP in the North West Legislature in 1995 and that it was referred to the Education Standing Committee. Even though this allegation was investigated by the latter multi-party representative structure, the NP referred same to my office without indicating why it was not satisfied with the investigation ofthe said Committee.

We, nevertheless, investigated this allegation. According to our information, Ms Gaoretelelwe's husband is a fully qualified educationist in his own right. Both of them were in the employ of the former Bophuthatswana Education Department before 1994, working at the same teacher's training college.

It also appears that Ms Gaoretelelwe's husband applied for posts which were duly advertised in newspapers. He had been shortlisted by an independent shortlisting panel and had been recommended for appointment by an interviewing panel constituted in accordance with the Public Service Act by the administrative Head of the North West Education Department. This was an administrative matter over which Ms Gaoretelelwe, as the then political head, did not have direct control. We could find no indication that the MEC influenced this appointment in any way or that her husband was not appointed purely on merit. To deny him the right to apply for a promotion post simply because his wife is the MEC, would constitute unfair discrimination.

I am satisfied that the allegation of nepotism pertaining to this appointment is not supported by the facts. Accordingly, it is my finding that the allegation is unjustified.

6.2 Appointment of the Director of Agriculture in Gauteng who is the spouse of the Minister for Agriculture and Land Affairs"

Dr P E Hanekom, married to the Minister for Agriculture and Land Affairs was appointed as Head of the Department of Agriculture, Conservation and Environment in the Gauteng Province on 1 April 1997.

Our investigation of this matter confirmed that provincial departments are completely autonomous from the national department and have no links in relation to employment matters at all. We have found that Dr Hanekom's appointment followed an open recruitment process (the position was advertised within the Public Service and in the media) and was based on an interview from a shortlist of candidates. The selection panel was constituted by He MEC for Agriculture, Conservation and Environment in Gauteng and the interviews were conducted by the said MEC assisted by the MEC for Agriculture in the North West Province, Mr Pule Malefane of the Standing Committee for Agriculture, Conservation and Environment in Gauteng, the Head of the Department of Housing and Land Affairs and the Chief Director: Human Resources. It was the view of the interviewing panel that Dr Hanekom was the best qualified candidate for the post, given her performance at the interview, as well as her qualification as a veterinarian and her experience as chairperson of the Agriculture, Conservation and Environment Standing Committee in the Gauteng Legislature.

As regards her qualifications, Dr Hanekom is in possession of B.Sc. and B.Vmch degrees as well as a post graduate Diploma in Economic Principles. It further appears that she has international exposure in agriculture and veterinary issues. She is currently studying towards an M.Sc in Economics.

No indication could be found that Mr Hanekom was involved in any way in the appointment of his wife. I am satisfied that Dr Hanekom is a highly skilled professional in her own right and that her appointment was on merit and unconnected to her husband's position.

6.3 The brother of the Chairperson of the Gauteng Legislature's Standing Committee for Arts. Recreation and Culture is the Superintendent-General of Education in Gauteng

Our investigation of this allegation of nepotism revealed that, in fact, Mr J Maseko, the Department's Superintendent-General, is not the brother of the Chairperson of the Gauteng Legislature's Standing Committee for Arts, Recreation and Culture. We could not find any indication that Mr Maseko is related to any member of the Gauteng Provincial Legislature.

6.4 The Chief of Staff in the Gauteng Premier's Office is the husband of the Chairperson of the Gauteng Standing Committee on Welfare

As the NP did not provide me with the details of the person that is supposed to be the Chief of Staff in the Premier's office, I had to approach the Premier directly. The Premier of Gauteng indicated that there is no such post in his office.

The NP was invited to submit more information in this regard to enable me to conduct further investigations, but no reply was received.

In the absence of any evidence to the contrary, it is found that this allegation is not supported by the facts.

6.5 Mr L Jacobs. brother of Gauteng MEC for Welfare and Population Development. Mr I P Jacobs. has been promoted from the position of a teacher to a senior management post in the Department of Education in Gauteng (grade 5 post)

We have found that Mr L Jacobs holds the position of Deputy Chief Education Specialist in the Gauteng Department of Education (post level 4) and that he was appointed by means of the normal process of selection. His appointment was made prior to the appointment of Mr I P Jacobs as the MEC for Welfare and Population Development.

In view of the fact that the appointment of Mr L Jacobs was made before the MEC allegedly involved took office, the allegation of nepotism in this regard is found to be without merit.

6.6 A family member of the MEC for Housing and Land Affairs. Gauteng (Mr D Mofokeng) has been appointed Chief Executive Officer of the Eastern Gauteng Services Council

Our investigation revealed that the vacancy of the position of Chief Executive Officer at the Council concerned was advertised in two newspapers. Twenty eight applications were received by the closing date, out of which a short list of seven candidates was drawn up by the full Council. Candidates had to present themselves for psychological assessment testing and they were interviewed by the Council on 10 April 1997. Mr M Mofokeng was appointed Chief Executive Officer with effect from 1 June 1997.

With regard to Mr M Mofokeng's skills and work experience, it appears that that he completed a number of post metric courses ranging from sales and marketing to management and skills training. In particular it should be mentioned that he has relevant experience in the labour and local government fields and appears to have been actively involved in community matters.

The Eastern Gauteng Services Council operates within the ambit of the Local Government Transitional Act and is an independent and autonomous body with authority to appoint its own staff. We could find no indication that Gauteng MEC for Housing and Land Affairs interfered, intervened, participated and/or influenced the

Council's resolution during short listing, interviews and appointment of the Chief Executive Officer.

The allegation of nepotism pertaining to this appointment is not supported by the available facts and is accordingly found to be without merit.

6.7 The appointment of the spouse of the Minister of the Public Service and Administration as Deputy Director-General in the Department of Foreign Affairs

From our investigation of this allegation, we gathered that Mrs Mazibuko-Skweyiya's qualifications for the position concerned were in all respects entirely applicable, which includes a Masters in Development Administration. She had also had appropriate international experience prior to joining the Department. It is further important to note that Mrs Mazibuko-Skweyiya was not married to Minister Skweyiya at the time of her appointment.

In view of the fact that Mrs Mazibuko-Skweyiya was not married to Minister Skweyiya at the time of appointment, her appropriate qualifications, an apparent transparent selection process and the absence of proof of a nexus between her appointment and her relationship with Minister Skweyiya, it is my finding that this allegation is not only unsubstantiated, but completely baseless.

6.8 Mr G M Budlender who is allegedly a friend of the Minister for Agriculture and Land Affairs. has been appointed Director-General of the Department of Land Affairs

The position of Director-General: Land Affairs became available when the former Director-General indicated that he was to retire at the expiry of his term at the end of April 1996. In order to create the opportunity for the new Director-General to familiarise him/herself with the Department, the post was advertised on 12 October 1995. Forty-two applications were received, of which four candidates were short-listed. The interviewing committee consisted of Minister Hanekom, Mr T Meyer (then Deputy Minister of Land Affairs and a member of the National Party), Minister J Naidoo (then Minister without Portfolio and a member of the ANC), and Dr B Ngubane (then Minister for Arts, Culture, Science and Technology and a member of the IFP).

According to our information, the committee interviewed the four short-listed candidates and used the criteria proposed by the Public Service Commission for interviews (such as managerial abilities, interpersonal relations, communication skills and knowledge of land matters). The committee unanimously agreed that Mr Budlender was the most suitable candidate. The appointment of Mr Budlender was accordingly recommended to Cabinet, which on 24 January 1996 unanimously concurred in his appointment. It should be emphasised that at the time the NP was still a member of the Government of National Unity, and was represented in Cabinet. As far as we could establish, no Cabinet member of the NP or any other party indicated any objection to Mr Budlender's appointment.

Mr Budlender is a BA LLB graduate from the University of Cape Town and an admitted attorney of the High Court of South Africa. He worked as an attorney in the Legal Resources Centre from 1979 to 1996 and was one of the founders of that organisation. Before accepting the post of Director-General, Mr Budlender was the National Director of the Legal Resources Centre. From his curriculum vitae it is evident that he held various positions prior to his appointment and that the main areas of his legal practice included land and housing issues (urban and rural), forced removals, influx control, administrative law, citizenship, labour law, social welfare benefits etc.

Furthermore, Mr Budlender was the principal drafter of the Restitution of Land Rights Act, 1994. In this capacity he led several meetings with the various study groups, and other stakeholders such as the National Land Committee, the Chamber of Mines, the Council of South African Banks and the South African Agricultural Union.

From our investigation it also appeared that, with the advent of democratic government in 1994, Mr Budlender's expertise was widely sought in government, for instance, he was appointed Chairperson of a Technical Committee to address the conflict around the KwaZulu Ingonyana Trust Act during 1994. Minister N Zuma appointed Mr Budlender as a member and then as chairperson of the National Health Legislation Review Committee. Minister K Asmal appointed Mr Budlender as Chairperson of the Water Law Review Committee and the President appointed him as Chairperson and sole member of the Commission of Enquiry into Alleged Irregularities in the Disposal of State Land.

It is not disputed that Mr Hanekom and Mr Budlender are friends. However, we could find no indication that Mr Budlender's appointment came about as a result of any improper influence by Mr Hanekom. As indicated, the NP, who is complaining about this appointment, was part of the process and agreed in both the mentioned committee and in Cabinet to this appointment.

6.9 The spouse of Mr Budlender (Director-General: Land Affairs) has been appointed special advisor to the Minister for Agriculture and Land Affairs

Regarding this allegation of nepotism, we have found that Mr Budlender's wife (Ms Classsens) is widely regarded as one of South Africa's leading land reform experts, with expertise based on academic training and on experience of working for almost twenty years with rural people on land and rural development issues. She holds a BA in African Languages and BA (Hons) in Industrial Sociology. From her curriculum vitae it appears that she worked for two years with rural co-operatives in the then Ciskei and Transkei areas. She worked for four years in the trade union movement, initially for FOSATU and then as General Secretary of the Paper, Wood and Allied Workers Union. In the latter capacity, she initiated and led the Farm Labour Project on the conditions of farm workers. Ms Claassens worked for seven years for the Transvaal Rural Action Committee, working with rural communities on forced removals and landlessness. She also worked for six years for the Land Rights Project at the Centre for Applied Legal Studies at the University of the Witwatersrand, latterly as head of the project. Furthermore, Ms Classsens was an advisor to the Constitutional Assembly on the question of land rights in the Constitution. She has published widely on land and related issues.

According to our information, Ms Classsens played a central and leading role in the conceptualisation of land reform for the new government during the period leading up to and immediately after the 1994 elections. She convened working groups which prepared legislative proposals, many of which ultimately became law.

It further appears that her direct involvement with the Department of Land Affairs sorted in May 1995 when she was appointed as a consultant by Mr E Buiten, the then Chief Director responsible for tenure policy, to prepare a document which court be used as the basis for subsequent tenure reform policy. Her work in this regard, for which she was paid by the Department, resulted in what is considered to be a significant document in the formulation of land policy, entitled Land Tenure Reform Research Framework

Apparently, because of lack of knowledge on tenure reform experience and stills within the Department of Land Affairs, Minister Hanekom appointed Ms Claassens as a member of the Tenure Reform Core Group in February 1996. This happened before Mr Budlender became Director-General.

We have been informed that, although Ms Classsens worked part-time for the Core Group, the volume of urgent tenure work faced by the Department increased. In order not to lose her expertise, the Minister appointed Ms Claassens with effect from 1 October 1996 as a special advisor working on tenure issues. From 1 June 1997 the Minister appointed Ms Claassens as an official special advisor, in accordance with the guidelines approved by Cabinet. In this regard it is important to note that Ms Classsens was appointed by the Minister and not the Director-General and that in her capacity as an advisor she was responsible to the Minister and not to the Director-General.

Furthermore, Ms Claassens' contract expired the end of December 1997. It was decided not to renew it because it was deemed appropriate that any future work which she does for the Department should be done on a consultancy basis negotiated with the Director : Tenure Reform, rather than with the Minister. At that time the Department was in the process of preparing major new tenure legislation to be presented to Cabinet in 1998. Her expertise was needed, not only to finalise the proposals, but also to guide inexperienced officials in ongoing negotiations with key stakeholders and in taking the bills through the parliamentary process.

It was the officials concerned and not the Minister or the Director-General, who have been negotiating a consultancy-based contract with Ms Classsens to continue working on new tenure legislation until September 1998 when she wished to return to the NGO sector. During this period Ms Claassens was paid from donor funds, following strict conditions laid down by the donors, one of which is that the consultant must be a generally recognised expert in the relevant field.

Our investigation revealed that, even though Ms Claassens is married to Mr Budlender and has had a working relationship with Minister Hanekom for a number of years, she was appointed to perform work on the basis of her independent status and qualifications as an expert on land reform. If the said relationships were to disqualify her from obtaining the position, it would have been grossly unfair to Ms Claassens as she clearly is an expert in her field. The facts show that her involvement with the Department of Land Affairs started before the appointment of Mr Budlender as Director-General. Furthermore, it is important to note that she was not appointed by her husband, but by the relevant Chief Director and Director of the said Department, as well as the Minister. It is therefore clear that Mr Budlender was at no stage directly responsible with regard to Ms Claassens fiscal and personnel status. Finally, it should also be taken into account that Ms Claassens was appointed on contract as a consultant and did not obtain permanent employment with the Department of Land Affairs.

6.10 The husband of the Deputy Minister of Justice had been appointed the High Commissioner in London

On 19 June 1996 the President appointed Dr Mantombazana Edmie Tshabalala, MP, a member of the African National Congress, as Deputy Minister of Justice with effect from 1 July 1996. The President made the said appointment in terms of section 88(4)(e) of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), read with section 94(3) thereof, and after consultation with Executive Deputy President T M Mbeki and the then Executive Deputy President F W de Klerk (then leader of the National Party).

In terms of section 82(1)(f) of the Constitution of the Republic of South Africa, 1993, and in terms of section 84(2)(i) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), the President is responsible for the appointment of ambassadors, high commissioners and other diplomatic representatives. The President makes such appointments after consulting the Executive Deputy Presidents.

The then High Commissioner of the Republic of South Africa to the United Kingdom of Great Britain and Northern Ireland, Mr M M T B Msimang (who is also the husband of Deputy Minister Tshabalala) was appointed as High Commissioner by the President on 15 December 1994 in consultation with Executive President T M Mbeki and the then Executive Deputy President F W de Klerk.

The appointments of Dr Tshabalala and Mr Msimang were made in June 1996 and December 1994 respectively. In both instances the appointments were made in consultation with the former leader of the NP. The available facts do not suggest that Mr De Klerk raised any concerns at the time. In view of the last-mentioned and, in the absence of any further evidence in support of this allegation I find it to be without merit.

6.11 The appointment of the spouse of the Minister of Defence in the South African National Defence Force

We have found that the appointment of the wife of the Minister of Defence, Major-General Mdluli-Sedibe, in the South African National Defence Force was approved by the President on 28 June 1994. According to the office of the President, this approval was granted on the basis of::

From the documentation pertaining to this appointment it appears that during the process of appointment of members of the former Non-Statutory Forces, documentary proof of qualifications, military experience and other criteria were taken into account. The Joint Military Co-ordinating Council approved a process in May 1994, in terms of which a Placement Board was instituted to place the members of the different integrating forces. A Placement Board assembled on 8 and 9 June 1994 under chairpersonship of General G L Meiring at the Defence Headquarters in order to consider the placement of 11 senior members. The said Placement Board made recommendations per memorandum for approval by the Minister of Defence and the President.

Upon perusing the said documents, we came across two copies of a memorandum dated 21 June 1994 (hereinafter referred to "memorandum A" and "memorandum B" respectively). In memorandum A it is inter alia recommended (by the said Placement Board) that Ms J Molefe (the surname of Major General Mdluli-Sedibe at the time) be considered for appointment with the substantive rank of Colonel and the temporary rank of Brigadier (this means that she would have been remunerated as Colonel, but would act fully in the managerial cadre of Brigadier or Director). Memorandum A was signed by the then Chief of the SANDF, General Meiring. However, the denatures of the Minister of Defence and the President were not affixed thereto.

Memorandum B on the other hand, is signed by the former Chief of the SANDF as well as the Minister of Defence and the President, who approved the said 11 recommendations. In comparison it is evident that memorandum B is identical to Memorandum A except that pages 3 and 4 of memorandum B had clearly been retyped as the font is different from the other pages. The contents of pages 3 and 4 of the memoranda (A and B) only differ in two respects. There is a difference on page 3 regarding the name of the post in which a certain appointee was to be placed - his rank however remained the same. The other alteration on page 4 of the memorandum B pertains to the appointment of Major General Mdluli-Sedibe, in that it is recommended that she be considered for appointment in the substantive rank of Brigadier.

Consequently, it is evident that the initial recommendation (substantive rank of Colonel) was changed to the higher substantive rank of Brigadier. It further appeared that the recommendation contained in memorandum B was implemented as Major General Mdluli-Sedibe was appointed at the rank of Brigadier. It is our information that, after the original memorandum A had been signed by the former Chief of the SANDF in Pretoria, the above amendments were made at the Minister's office in Cape Town.

We were concerned about these amendments as well as regarding Major General Mdluli-Sedibe's subsequent promotion to the position of Chief Director, and requated an explanation from the Minister of Defence. We have received the following information in this connection:

Major General Mdluli-Sedibe joined Umkhonto weSizwe (MK) in 1964 and left South Africa for training the same year. She was trained to specialise in signals. In 1969 she underwent further training in military and combat work, specializing in clandestine radio communications. In later years she was trained in cryptography, antennae (directional) and prognoses.

Furthermore, we are informed that she often represented the ANC at international conferences, both as delegate and speaker. As such she attended the historic meeting

between white South African women and the ANC's Women's League in Harare, Zimbabwe in 1987 to present the views of the military. In 1978, she was appointed to the Revolutionary Council and made responsible for organising communications with South Africa and other countries. When the Revolutionary Council was divided into a political and military section, she stayed on at Military Headquarters in Lusaka where over the period 1980 to 1988 she successfully orgamsed radio links between Angola, Tanzania, Zimbabwe, Botswana, Mozambique, Swaziland and South Africa.

Major General Mdluli-Sedibe was appointed to the ANC's National Executive Committee as one of MK's representatives. She spent the final two years of her career at MK Headquarters in Johannesburg as Head of Communications. During this time (in 1993) she underwent training for six weeks on the Mabel-Multiplexed Automatic Telephone system (data transmission) at Heckfield College in the UK. She was a member of the work group that determined the status of women in the SANDF at the Joint Military Co-ordinating Council before integration started in 1994. In this capacity, she obtained vast experience regarding the utilization of women in a military force and regarding gender equality in a military force.

Her name was contained in an MK Certified Personnel Register and on 27 April 1994 she integrated into the SA National Defence Force as a full member of that Force. We are also advised that, prior to Major General Mdluli-Sedibe's integration into the SANDF in 1994, she had already served as a General in the High Command of MK.

The initial recommendation by the Placement Board would have been unacceptable in view of the fact that she had already been operating at a General's level within MK and the fact that she was the senior of some of her male colleagues that were to be appointed as Major Generals and Lieutenant Generals in the same submission. The Minister and General Meiring then discussed all the appointments. On General Meiring's recommendation, it was then agreed that she would not be appointed as a Major General but as a substantive Brigadier. His reasoning was that there were at that stage no other female generals in the SADF and that it would create a problem if she were to be appointed as a Major General before other serving female brigadiers are considered for promotion to this rank level.

The submission (memorandum A) was then amended and the relevant pages were retyped in Cape Town and resubmitted to the Minister by General Meiring (memorandum B).

In response to questions posed by my office to the Minister of Defence regarding this matter he explained that, when the integration process commenced in 1994, the SANDF was confronted with a senior officers corps dominated by mainly white males. As no female had been appointed at the rank of General in the SANDF, there was fierce resistance to one being appointed from the former Non-Statutory Forces. There was even resistance to one being appointed at the rank of Brigadier because she would then have had the same rank as the other three serving female Brigadiers. According to the Minister, as a former commander of MK, he should have disregarded this resistance and insisted on a General's rank for Major General Mdluli-Sedibe in her own right as one of the top six senior members of MK Headquarters since 1983. However, he did not, because of his fear that it could be interpreted as "favouritismn". The Ministers contends that his sensitivity regarding perceptions of favouridsm have caused his spouse to be prejudiced as she qualified to have been appointed at a higher rank.

With to the decision concerning Major General Mdluli-Sedibe's subsequent promotion it appears that with the retirement of a former Chief Director: Corporate Communications on 31 August 1996 and the Deputy Chief of Personnel, the Chief of the SANDF approached the Minister with the proposal to appoint Major General Mdluli-Sedibe and another officer as successors to these two general officers respectively. The Minister agreed to this as such a step would address his discomfort about the absence of women in the top management echelon of the Department of DoPcoce. The result of this decision was that both these officers were promoted to Major General, albeit on different dates.

Before Major General Mdluli-Sedibe could take up her position as Chit* Director: Corporate Communications, it was decided that she would be better placed in the post of Chief Director: Equal Opportunities (CDEO) within the Personnel Division of the Department of Defence. Consequently, the decision was taken to appoint her as the CDEO and another Major General as Chief Director: Corporate Communications.

From our investigation of this matter, it is clear that Major General MdIuti-Sedibe is highly trainect in the military field and that she was one of the top senior members of MK. Under the circumstances surrounding the integration of officers of the former South African Defence Force, the former TBVC Defence Forces and the then Non-Statutory Force; and taking into account her experience and qualifications, her appointment and promotion seem to be justified.

Although I was initially concerned about the amendments to the submission pertaining to the appointment of Major General Mdluli-Sedibe, the explanation provided by the Minister and his Department in this regard, appears to be acceptable. However, I am finely ofthe view that the Minister of Defence should not have exposed himself to this situation involving the risk of a conflict between his official responsibilities (appointment of senior officers) and his private interests. Even though the appointment of Major General Mdluli-Sedibe can be justified on merit, the Minister of Defence should, in my opinion, have refrained from considering his spouse's appointment in order to prevent any perception of favouritism or nepotism in the minds of others. It would have been more proper for him to have recused himself from considering this appointment and to have delegated his authority in this regard in the case of his wife to his deputy.

6.12 Dr K N Ginwala. sister of the Speaker of the National Assembly, was appointed Ambassador Extraordinary and Plenipotentiary of the Republic of South Africa to the Republic of Italy

As mentioned supra, the responsibility for the appointment of ambassadors was, in terms of section 82(1)(f) of the interim Constitution, a responsibility of the President, who made such appointments after consulting the Executive Deputy Presidents. Dr KN Ginwda was appointed by the President on 8 June 1995 in consultation with Executive Deputy President T M Mbeki and the then Executive Deputy President F W de Klerk (then leader of the National Party). From Dr K N Ginwala's curriculum vitae it appears that she obtained the MBChB degree and does not only have experience as a medical practitioner, but also served as a member of several committees, councils and boards.

From our investigation it is dear that the President made this appointment in terms of:

No indications could be found that Mr De Klerk opposed this appointment. I find it peculiar that the National Party now alleges nepotism in this matter.

I am satisfied that the allegation of nepotism pertaining to this appointment is not supported by the facts.

6.13 The allegation that ANC MP's Spouses have been appointed to the Gender Commission

The President had, in terms of section 3(2) of the Commission on Gender Equality Act, 1996 (Act 39 of 1996), the power to appoint as a member of the Commission on Gender Equality, a person approved by the National Assembly and the National Council of Provinces, by a resolution adopted by the majority of the total number of members of both Houses at a joint meeting. From the minutes of proceedings of a joint sitting on 7 November 1996, it appears that the report of the Joint Committee on Appointment of Commission on Gender Equality was considered. The House was divided and 260 voted in favour thereof and 105 against. The Report was adopted and nominations were accordingly approved in accordance with section 3(2)(c) of the Commiaion on Gender Equity Act, 1996.

On 12 March 1997 the President in consultation with Executive Deputy President T M Mbeki appointed to the Commission on Gender Equality the following persons:

As the allegation by the NP in this regard was a general one without any details, my office requested further information and comments from the NP to enable me to take the investigation further. However, regrettably, no reply to this request was received.

6.14 Mr Azbar Cachalia, the brother of Mr Firoz Cachalia who is the leader of the Gauteng Legislature, has been appointed the Secretarv of Police and heads the National Crime Prevention Strategy

Section 2(2) ofthe South ABican Police Sorvice Act, 1995 (Act 68 of l995), provides for tbe appointment of a person to the office of Secretuy for Safety and Security. Tbe said post was advertised in a Public Service Commmion circular and in the media.

The requirements for the post were an appropriate and recognised Bachelor's degree or equivalent qualification and the following were regarded as a recommendations:

A selection committee consisting of the following persons undertook a pre-selection on 12 September 1995:

The selection panel was of the opinion that Mr A Cachalia was the most suitable candidate for the post. As this appointment concerned the filling of a post in the management echelon of the Public Service, the approval of the Public Service Commission for the appointment of Mr Cachalia was obtained. Furthermore, Cabinet concurred with the appointment of Mr Cachalia on 18 October 1995.

No indication whatsoever could be found that Mr F Cachalia was involved in this appointment or that he had any influence on the selection panel.

I am satisfied that an open and transparent process was followed in filling the position concerned. The allegation of nepotism is found to be without merit.

6.15 The appointment of Dr L Patel as Director-General of the Department of Welfare. She is Mr Azhar Cachalia's spouse. who is the Secretary for Safety and Security

I find it quite peculiar that NP would enquire about this appointment made in January 1996 by the then Minister of Welfare and Population Development, Mr Abe Williams, National Party MP.

Nevertheless, it is our information that the post of Director-General: Welfare was duly advertised and applicants were short listed by a panel consisting of the then Acting Director-General, former Minister A Williams and Ms Fraser-Moleketi, who was Deputy Minister at the time. Seven people were interviewed by a panel comprising of Mr Williams (as chairperson), the Minister of Arts, Culture and Technology, Dr Ben Ngubane and Ms Fraser-Moleketi.

In short, from Dr Patel's curriculum vitae it appears that she holds a Diploma in Social Work, a Higher Diploma in Social Work, MSW and Doctoral Degree in Social Work. She further has extensive experience as a lecturer, Director/Editor of Grass Roots Publications and a consultant (Social Development Consultancy).

Based on the recommendation of the panel, Mr Williams recommended that Dr Patel be appointed in the position. Dr Patel subsequently vacated her office with effect from 1 December 1997.

In light of the above-mentioned I am satisfied that the allegation of nepotism pertaining to this appointment is not supported by the facts.

6.16 Mr Z Sisulu. brother of the ANC Chief Whip, Mr M Sisulu, the son of ANC veteran, Mr W Sisulu. was appointed as the Group Chief Executive of the SABC

From our investigation it was established that during the middle of 1993 the then Group Chief Executive of the SABC, Mr W Harmse, indicated that he was not seeking re-appointment to the position at the expiry of his contract. There was also an awareness of the need for a new Group Chief Executive to put his/her leadership stamp on any changes in the interest of the organisation. Mr Harmse requested that the SABC Board approve his resignation at the end of August 1994 alternatively mid-September 1994 because of personal commitments.

Following the above, interviews were held during the middle of 1993 for the position of Group Chief Executive to succeed Mr Harmse. Mr Dan Esterhuyse, Mr Wynand Harmse as well as members of the Board were present at the interviews. No indication could be found that the ANC, Mr W Sisulu or Mr M Sisulu had anything to do or any influence on this process.

From Mr Z Sisulu's curriculum vitae it is evident that he has extensive experience as a journalist, reporter, news editor and editor. He also received a number of awards in respect of journalism and human rights in and outside South Africa.

I am satisfied that Mr Z Sisulu is adequately qualified for the position that he was appointed to and that the selection process was transparent and proper. No substance for the allegation of nepotism could be found

6.17 The appointment of the spouse of the former MEC for Environmental Affairs in Mpumalanga, Mr D S S Mkhwanazi. as a deputy director

From our investigation of this allegation it is clear that Mrs C B Mkhwanazi was appointed in the Public Service long before her husband became a politician. She has served for more than 20 years in the Public Service. Her work experience includes the following .

Assistant teacher, head of department of a school, deputy principal, principal, school inspector, assistant district director and director.

Mrs Mkhwanazi was appointed to the post of director within the Directorate: Education Development and Provisioning in the Mpumalanga Education Department in October l995. This appointment was made after consultation with the Provincial Cabinet and on recommendation of the Provincial Service Commission.

Subsequently, she applied for a position of deputy director in the Department of Environmental Affairs and was found to be the most suitable candidate in environmental education. She was appointed against a post of deputy director with the retention of ha salary notch and her transfer approved by the Head of the Mpumalanga Education Department with effect from I March 1996. The final decision for her transfer was taken by the Provincial Cabinet whilst Mr D S S Mkhwanazi was on an official overseas visit.

Mrs Mkhwanazi has obtained a Secondary Teacher's Diploma in 1982 and an Honours Bachelor of Arts on 6 May 1995. She is currently studying towards a Masters degree.

An Internal Investigation Committee found that Mrs Mkhwanazi was appointed after correct and formal procedures had been followed.

It is evident that Mrs Mkhwanazi has appropriate qualifications and extensive applicable experience. Moreover, her promotion to the rank of director occurred in the Mpumalanga Department of Education after all procedures were followed and we could find no evidence that she obtained this position as a result of her being Mr Mkhwanazi's spouse. Her subsequent transfer was to a lower post, albeit with retention of her salary notch. It appears again that proper procedures have been followed.

I am satisfied that Mrs Mkhwanazi's promotion (to director) and subsequent transfer were on merit and that the allegation of nepotism is unfounded.

According to our information, Ms Thoko Mkhwanazi, Mr D S S Mkhwanazi's daughter, worked at the Department of Finance in the former Kwangwane for a period of 3 years, after which she resigned. She commenced with her studies for a B.Sc degree at the University of Natal and later enrolled at the University of Zululand, where she obtained a B.Com degree in 1996. She subsequently obtained the post of assistant director at the Mpumalanga Tourism Authority.

An Internal Investigation Committee found that correct and formal procedures had been followed in appointing Ms Thoko Mkhwanazi. Interviews were conducted in terms of prescribed procedures and her academic and professional qualifications were submitted.

We could find no indication that Ms Mkhwanazi had been appointed as alleged as a result of nepotism. She has appropriate experience and qualifications and proper procedures had been followed.

6.19 The appointment of Mr A Z Mkhwanazi. who is Mr D S S. Mkhwanazi's brother, as an assistant director in the Mpumalanga Department of Environmental Affairs

From our investigation of this allegation of nepotism it is clear that Mr A Z Mkhwanazi completed a Secondary Teacher's Diploma in 1985 and a B.Paedonomiae in 1986. He started working in 1978 as an assistant teacher and was subsequently promoted to teacher, head of department, principal, subject adviser and campus director. Mr A Z Mkhwanazi was in the employ of the Department of Education until 1995. The component in which he worked was taken over by the Mpumalanga Department of Environmental Affairs and Tourism and he was transferred to the latter Department. It is important to note that Mr A Z Mkhwanazi was transferred without any personal gain. He is currently on the level of assistant director.

In view the fact that Mr A Z Mkhwanazi was transferred to the Mpumalanga Department of Environmental Affairs and Tourism in a process of rationalisation, the allegation of nepotism is unfounded.

Ms Mlotshwa is in possession of a B A degree obtained from the University of Botswana, Lesotho and Swaziland in 1975. She obtained a Masters of Arts degree at the University of Atlanta and is currently enrolled for a D Tech: Education.

It further appears that her career spans over a number of years. Ms Mlotshwa worked as a teacher from 1975. In 1985 she was appointed as a lecturer at the William Pitcher Teacher Training College. During 1990 she also worked as a part-time lecturer at the University of Swaziland. In 1993 she was appointed as a subject advisor for English and in 1994 as a principal subject advisor and Head of the Teachers' Centre at Elukwatini (the level of assistant director).

The component in which she was working at the Department of Education, was taken over by the Mpumalanga Department of Environmental Affairs. From the documents that we obtained, it is evident that she applied for a post of deputy director (environmental in the latter department, was interviewed by a panel of three unrelated people and was recommended for appointment by the Mpumalanga Provincial Service Commission. She was appointed with effect from 1 December 1995.

The facts show that Ms Mlotshwa was appointed in the position on the basis of her eminently suitable training and experience. The investigation revealed that this allegation of nepotism is unfounded.

7. FAILURE BY THE NATIONAL PARTY TO SUBSTANTIATE THE ALLEGATIONS OF NEPOTISM

In its investigation of complaints of improper conduct, such as alleged nepotism, my office does not seek to aggregate itself the discretionary powers of government officials, be they statutory or otherwise. Where, however, there are pointers to nepotism, such as inappropriate or inadequate qualifications or experience, bias, failure to comply with due process, lack of transparency and any other underhand means, my office will intervene to ensure that corrective action is taken. Needless to say, in many matters the facts speak for themselves. In other words, mere connections between people by way of relation, acquaintance or friendship is not the end of the matter. There has to be substantiation of the allegations by way of facts. Only then can a proper conclusion be drawn about the presence or absence of nepotism.

As indicated in paragraph 5, supra, I decided to investigate the allegations of nepotism made by the NP even though no details or substance for the statements made in this regard were provided. The investigation by my office was in a sense complicated by the fact that the complaint has only identified certain relationships between people in the public sector without establishing a basis upon which the appointments concerned might have been compromised as a result of these relationships. Because of the lack of details and substance I decided to submit the information pertaining to every appointment that have been complained about and that my office obtained during our investigation, to the NP for comment and, obviously, to provide me with more details as far as the alleged occurrences of nepotism are concerned. The NP at no stage acknowledged receipt of any of my letters, neither did it respond in any manner to my requests for further information.

The failure by the NP to provide any substance for the allegation of nepotism left me, in the light of the results of our investigations, with the unavoidable impression that the allegations made by the NP were merely assumptions based on the mentioned relationships.

From the investigation by my office of the complaint of nepotism by the NP I could not find one instance where such an allegation could be justified. My requests to the NP to provide me with substance for these allegations were not responded to.

Allegations of nepotism have a serious effect on the dignity and credibility, not only of the person that has been appointed or promoted, but also on the person that is allegedly responsible for such an appointment or promotion. Although I have appreciation for the perception that several appointments of related persons in one department might point to nepotism, any such allegation should be based on facts rather than only on the existence of a family relationship or friendship.

9. THE RESPONSIBILITY OF MEMBERS OF PARLIAMENT AND POLITICAL PARTIES TO ASSIST THE PUBLIC PROTECTOR IN INVESTIGATIONS.

In terms of the provisions of the Constitution, 1996, the Public Protector is an institution that strengthens constitutional democracy in the Republic. Section 181(3) provides that other organs of state (that includes members of Parliament) must assist and protect this institution to ensure its independence, impartiality, dignity and effectiveness.

In the process of protecting and promoting our newly established democracy, I am of the view that members of all political parties also have a public responsibility to assist the institutions that have been created by the Constitution for this specific purpose. It cannot be allowed that these institutions should be abused for political gain or sensationalism that is based on political interests.

In my Special Report on the Mpumalanga Housing Project (Report No 8) I stated my concern in this regard as follows(see paragraph 4 of the Report):

"The tendency of some members of Parliament and political parties to lodge complaints at my office that consist of vague allegations and unsubstantiated rumours and then not to co-operate by providing the details or substance for such complaints, even when specifically requested to do so, is of serious concern to me. I regard such behaviour as, to say the least, unbecoming of a member of Parliament."

The failure by the NP to respond to my several requests for assistance reiterates my contentions in this regard. The fact that the complaint was lodged by and that my

subsequent correspondence was addressed to a Member of Parliament, who ignored my request for assistance, is of outmost concern to me.

The provisions of the Bill of Rights contained in Chapter 2 of the Constitution prohibits discrimination, whether directly or indirectly against any person. Should a properly qualified person who applies for a position be excluded from being considered, merely on the basis of the applicant being related to a more senior official or a member of the Executive, such applicant will, in my view, suffer unfair discrimination.

Nepotism, however, should be guarded against in the same manner as is the case of corruption. In this regard several measures have already been taken. Firstly, mention should be made of the Code of Conduct for Public Servants, which provides for guidelines to employees with regard to, inter alia, the avoidance of conflicts of interest. In particular, item M4.3.3 provides that an employee should refrain from favouring relatives and friends in work-related activities and never abuse his or her authority or influence another nor be influenced to abuse his or her authority. An employee who places himself or herself in breach of this Code shall be guilty of misconduct in terms of the Public Service Act, 1994, and can be dealt with in accordance with the disciplinary provisions contained in the said Act.

Secondly, the Executive Members' Ethics Act, 82 of 1998, provides for a code of ethics governing the conduct of members of the Cabinet, Deputy Ministers and members of provincial Executive Councils. In terms of section 2(1) the President must, after consultation with Parliament, by proclamation in the Gazette, publish a code of ethics in this regard. Section 2(2)(b) provides, inter alia, that the code of ethics must include provisions prohibiting Cabinet members, Deputy Ministers and MECs from exposing themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests, and using their position or any information entrusted to them, to enrich themselves or improperly benefit any other person. It is my information that this code of ethics has not been compiled and published yet.

As far as I could establish, Parliament does not have a general code of conduct for Members of Parliament. However, from the introduction a document entitled: "Rules Committees of the National Assembly and Senate on Code of Conduct in Regard to Financial Interests", it appears that it is the intention that matters of ethics pertaining to Members of Parliament will be addressed in future.

In terms of the provisions of section 182(1)(b) and (c) of the Constitution, 1996, and section 8(1) and (2) of the Public Protector Act, 1994, I recommend that:

³ C J K Tanda, University of Juba, Khartoum - Sudan,
Nepotism and the evoluffon of the Public Service in Apia. A cry tical review. Back

Investigation Reports