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Cases carried forward to January 2000
Cases carried
forward to
January 2000
Cases carried
forward to
January 2000 Classification of cases and manner completed
NO = National
office; NW =
North West
regional office;
EC = Eastern
Cape regional
office
NO = National
Office NW =
North West
regional office
EC = Eastern
Cape regional
office The following information should be useful in interpreting the statistics in the foregoing table: Finding made These are cases where I investigated and came to a conclusion on the facts, in favour of either the complainant or the institution/department complained against. No further action taken: These are cases where:
Advice given or assistance rendered
Referred to another body to finalise This action would be taken only in matters where I feel that another body would be the appropriate authority to approach. Where such a referral does take place, I usually request the recipient body to keep me informed of developments. Expected of complainant to exhaust alternative legal remedies These are cases where a court of law would be a more suitable forum or where the complainant is already pursuing the matter in the courts. Some of the more common types of complaints referred to my office include the following:
Special reports During the year under review, I found it necessary and in the public interest to submit special reports to Parliament in the following cases:
In the case of report number 13, an additional consideration to report by way of special report was that one of my recommendations required an intervention by the National Assembly. Since the special reports had been tabled, and are readily available, I do not repeat here what has been reported on in detail in those reports. Cases concerning high-level officials and office bearers During the year under review, I dealt with three cases of considerable public interest, since they concerned Director-Generals of state departments or high ranking political office bearers. Consequently I report on these three cases in some detail below: 1. Case number 0687/99 Introduction Various allegations were made in the media, in particular in the Sunday Times of 21 March and 11 April 1999, accusing Mr A S Mokoena, Director-General: Department of Home Affairs, of being responsible for a number of improprieties and irregularities. I commenced an �own initiative� investigation into these allegations in terms of section 182 (1) of the Constitution of the Republic of South Africa Act, 1996, read with section 6(4) of the Public Protector Act, 1994. Shortly after the commencement of the investigation, the Minister of Home Affairs appointed Mr M J Sikhosana, then Deputy Director-General in the Department of Public Service and Administration, to investigate the allegations in terms of section 27 of the Public Service Act, 1994 (�the Act�). I considered it appropriate, in terms of section 7(3) of the Public Protector Act, to co-operate with that investigation, and two of my investigators worked closely with the Departmental team, thereby simplifying the investigation and avoiding an unnecessary duplication of efforts. After the conclusion of the above joint Public Protector-Departmental investigation my office continued with the investigation of various additional issues and I made certain supplementary recommendations as indicated below. Methodology and terms of reference The departmental investigator was mandated to investigate the following allegations against Mr Mokoena:
The investigation was wide-ranging and involved the examination of numerous documents and departmental procedures, and interviews were conducted with many individuals, including private citizens and employees of the Department of Home Affairs. After the investigation, prima facie findings were made which lead to recommendations for disciplinary action to be instituted. Prima facie findings regarding the alleged owning and managing of a basketball team without approval of the executing authority
Prima facie findings regarding the alleged use of departmental equipment to run a basketball team, including the use of official telephone and fax numbers In view of the fact that Mr Mokoena by own admission made use of fax facilities for basketball business and did not pay for that usage, it was found that the provisions of Treasury Instruction R2.2 were not adhered to by him.
Prima facie findings regarding the alleged irregular handling of work permits/citizenship applications for foreign players recruited for the team At the time, a person applied for a work permit from his/her country of origin. In the past, it was possible to enter South Africa on a visitor�s visa and, while still in the country, have it amended to a work permit. The first application for a work permit will initially be received and handled by the relevant regional office where the person wants to reside. After considering the application, a recommendation will be made to head office, where the application would be finalised. Work permit applications are processed by Immigration Officials of the Department of Home Affairs in terms of the internal delegations of the Department. (It should be noted that Mr Mokoena denied any involvement in the processing of work permit applications for foreign players of his team.) Mokoena denied any in the processing of work permit applications for foreign player of his team.)
Prima facie findings regarding the alleged use of state vehicles for private purposes
Summary of recommendations The departmental team, in consultation with my office, made the following recommendations, which were submitted to the President and the Minister of Home Affairs in terms of the provisions of the Act:
These recommendations expressly did not preclude the recovery of any remuneration received by him, in terms of section 31 of the Act. It was further recommended that:
At that stage, there was insufficient evidence to formulate charges of misconduct against Mr Mokoena regarding additional allegations listed below and that fell outside the mandate of the Departmental team. It was recommended, therefore, that should further evidence come to light, it should be forwarded to me who was continuing with the investigation. Mr Mokoena was charged as recommended and a departmental disciplinary hearing was convened before an independent chairperson. Additional allegations regarding matters falling outside the mandate of the departmental team and investigated by the Public Protector. Allegations were made in respect of two officials attached to the Anticorruption Unit in the Department of Home Affairs who were allegedly performing private duties at Mr Mokoena�s personal residence. Allegations were made in respect of 21 illegal immigrants that were in custody at the Edenvale Police Station and where the then Director-General: Department of Public Service and Administration, Dr M P Ncholo, was implicated. Dr Ncholo, however, denied these allegations, and made available documents indicating the legal status of the alleged illegal immigrants. (Please refer to the separate report on this investigation below). Mr Mokoena allegedly declared an amnesty and approved that officials at Market Street would not be charged for misconduct committed before February 1998 and such charges were subsequently withdrawn. My investigation into these matters continued and, shortly after the above-mentioned charges were put to Mr Mokoena in the Departmental enquiry, the office found sufficient prima facie evidence to warrant the recommendation that two additional charges (dealt with in detail below) be put to him as part of the same proceedings. Failure of Mr Mokoena to recuse himself from a decision to appoint certain persons to the establishment of the Department of Home Affairs Prima facie findings
Recommendation It was recommended that Mr Mokoena be charged with misconduct for transgressing section 20(t) of the Act in that he contravened the provisions of the Code of Conduct for the Public Service as contained in Public Service Regulations M 4.4.6 by failing to recuse himself from an action or decision which resulted in improper gain and, further, that he failed to declare his interest in the decision. Prejudice caused to the administration, discipline or efficiency of the Department of Home Affairs. Allegation Mr Mokoena initiated an amnesty at the Market Street office of the Department of Home Affairs. This amnesty was granted to at least one employee, a Ms V, before she had appeared before a disciplinary hearing. This decision was taken where the inspecting authority within the Department had advised him that sufficient evidence existed to charge her with misconduct in the form of theft of state moneys. Applicable policy Mr Mokoena�s memorandum setting out the details of the amnesty provided inter alia that any grant of amnesty would be available only to �serving and dedicated employees who clearly were determined to turn a new page and were committed to clean administration in future�. Prima facie findings
Recommendation It was accordingly recommended that Mr Mokoena be charged with misconduct for transgressing section 20(b) of the Act, in that he contravened the provisions of Public Service Regulation A 4.1, and section 34(1) of the exchequer Act, 1975, read with Treasury Instruction W 9 by granting amnesty to Ms V in circumstances where he was obliged to at least attempt to recover fro her all moneys allegedly misappropriated by her. Conclusion These recommended additional charges against Mr Mokoena were forwarded to the President and Minister of Home Affairs for their decision. However, before they could be considered or a decision reached to prefer these further charges against Mr Mokoena, and before the presiding officer in the departmental disciplinary enquiry delivered his fingers, the Director-General resigned from his post, and the matter was regarded as concluded. My office continues to follow up on certain ancillary issues that arose during the investigation of the allegations against Mr Mokoena. These are:
2. Case number 1622/99 Introduction During the course of an investigation by my office into allegations of irregularities concerning the Director-General of the Department of Home Affairs, Mr A S Mokoena, I became aware that the Director-General of the Department of Public Service and Administration, Dr M P Ncholo, had been appointed by the Minister of Home Affairs to conduct a preliminary departmental investigation into the same allegations. Allegations surfaced, however, to the effect that Dr Ncholo would be an inappropriate appointment for this task as he was facing similar allegations to those levelled against Mr Mokoena. The allegations against Dr Ncholo included the assertion that, while employed as a public servant, he was engaged in private business activities. Such business activities were said to amount to remunerative work in contravention of section 30(b) of the Public Service Act, 1994, which prohibits outside employment without permission of the �executing authority� (i.e. the Minister) acting on the advice of the Public Service Commission. It appeared fairly early, however, that Dr Ncholo had, in fact, obtained the necessary permission and his continued engagement in such outside remunerative work entirely regular. A further allegation forming the basis of the contention that Dr Ncholo was an inappropriate appointment as investigator of the allegations against Mr Mokoena was that he had been the beneficiary of assistance by the Director-General of Home Affairs. Dr Ncholo was stated to be so �indebted� because of the alleged improper release from police custody of 21 farm workers illegally employed on one of his family�s farms. It was this alleged improper release from lawful custody that formed the substance of the Public Protector�s investigation. Methodology The Public Protector�s investigation took the form of interviews with several officials and others, some more than once, in order to ascertain the facts of the matter and to clarify the relevant procedures involved in the release from custody. Several exchanges of official correspondence and departmental notices were obtained and perused in order to establish the context within which the events had taken place. At the conclusion of the investigation my preliminary findings were put to Dr Ncholo for his comment. The Public Protector expresses his appreciation for the generally frank, open and helpful attitude displayed toward his office by all officials approached for assistance during the investigation. Findings It was established that members of the South African Police Service (SAPS) had, on Tuesday 13 October 1998, arrested 21 farm workers employed on a farm owned by Dr Ncholo. They were arrested because they were in possession of neither passports from their country of origin (Mozambique), entry visas from South African authorities, nor work permits authorising them to be employed in South Africa. It appeared from correspondence furnished to the Public Protector�s office that Dr Ncholo�s farm manager had, prior to the arrest, been alerted to the illegal status of a group of some eighty of is employees and had been advised by the Department of Home Affairs of the steps required to legalise the presence of the employees in South Africa. The farm manager had been instructed to inter alia obtain passports for the employment contracts would be issued, valid until 31 January 1999. These instructions had been issued to the farm manager pursuant to directions sought and furnished from the office of the Director-General: Home Affairs. The Public Protector�s office was informed that this process had been commenced but not yet completed at the time of the arrests. The 21 arrested employees, apparently forming part of the group of eighty, were incarcerated at the Edenvale Police Station, east of Johannesburg. The arrest and incarceration of suspected aliens by the SAPS is regarded as normal procedure and reflects a standing co-operative relationship between the SAPS and the Department of Home Affairs. As this event took place at a time when the employees were urgently required to assist with the harvest, Dr Ncholo had requested assistance from the Department of Home Affairs after he had been informed (correctly) that the South African Police Services are not permitted to authorise the release from custody of persons illegally present in South Africa. This is a responsibility to be exercised only by Immigration Officers in the employ of the Department of Home Affairs. Dr Ncholo was referred, ultimately, to the office of the Director-General: Home Affairs who, he was informed, would be in the best position to offer assistance. The Director-General: Home Affairs issued an instruction to certain officials of the Department of Home Affairs that the arrestees were to be released from custody and placed on section 41 permits. Permits in terms of section 41of the Aliens control Act 96 of 1992, read with Regulation 22(1) in terms of the Act, are a reflection of the status of the bearer as illegally present in the Republic, but allow the bearer to remain in the country on a temporary basis (a departure date is specified in the permit) in order to wind up their affairs and leave the country. Once they have left South Africa, the individual concerned is free to initiate or resume the ordinary application process to enter South Africa for a variety of purposes, including seeking employment. After the intervention of two immigration officers, who signed the necessary release warrants, the arrested employees wee released from custody at the Edenvale Police station and transported to Carmel Farm, where they were living and working at the time of their arrest. The process of issuing them with section 41 permits commenced the following day when Home Affairs officials went to Carmel Farm. Farm management was informed that the section 41 permits were apparently intended to act as a temporary arrangement pending the issuing of B1-17 employment contracts. Following the completion of this process, Dr Ncholo offered the officials a quantity (8 containers/crates) of vegetables as a gift of appreciation for the assistance rendered. There appears to have been some reluctance to accept the offer of the gift but, after the officials were persuaded that the vegetables were not intended to be a bribe of any kind, the offer was accepted and the vegetables removed from the farm. Some were apparently taken by the officials themselves, while two of the crates were delivered by them to the offices of Mr Mokoena. Mr Mokoena was, however, apparently not in the office for several days and was accordingly not in a position to either accept or reject the gift. In any event, when he was made aware of the presence of the vegetables, he declined to take advantage of the offer. The Public Protector�s investigator was informed that the vegetables were stored in a refrigerator in a communal kitchen at the Department of Home Affairs, from where they later disappeared, removed by a person or persons unknown. Conclusions Release from custody B1-17 employment contracts are usually issued to migrant mineworkers in terms of a series of bilateral agreements between South Africa and the BLS states and Mozambique. In recent years, however, for a variety of reasons, the practice has emerged for these contracts to be made available to other categories of workers, including agricultural workers. In terms of the law, these contracts are granted to South African-domiciled prospective employers in order to allow them to recruit employees at recruitment centres established near a number of border towns. The employer presents his B1-17 �no objection� contract to an official at the recruitment centre and is then permitted to select prospective employees from among those job-seekers present. The selected individuals then present themselves to the immigration control officers at the border post where their passports are then endorsed and they are permitted to enter the country. The B1-17 contrast is issued for a fixed period of time and requires renewal after permission is obtained from the Departments of Home Affairs and of Labour. These Departments are required to indicate that they have �no objection� to the proposed employment contract. Renewal of the employment contract requires the employees to physically leave the country and re-enter through the border post in order to have their passports stamped with new visas. At the time of the events described above, and because of the serious levels of unemployment in South Africa, the Departments of Home Affairs, Labour and Agriculture were undertaking a review of the practice of extending the availability of the B1-17 employment contract to a wider range of categories of work. In order, however, not to pre-empt the outcome of the review and also not to unnecessarily inconvenience businesses then reliant upon such contracted foreign labour, a flexible approach was adopted in what was in effect, a transition phase. Thus, for example, a concession to extend a then-existing contract in respect of construction workers for a period of a few months was granted on 12 June 1998. Similarly, in a circular to all Regional Directors dated 30 July 1998, their attention was drawn to an �interim arrangement� in terms of which B1-17 permits could be extended to 31 January 1999. Irregular instructions It is clear, firstly, that, in terms of the law, it was ordinarily irregular for the Director-General to have issued the instruction to allow the eighty illegal immigrants to remain in the country pending their obtaining passports and, thereafter, being issued with B1-17 contracts, also while still in the country. The group of eighty workers illegally and would continue to be in the country illegally should they not be required to leave the country at some point and return through a designated border post and obtain the requisite visa stamped into their passports. Similarly, B1-17 contracts cannot ordinarily be issued in respect of persons already present in the country, for the reasons set out above. While the Minister of Home Affairs, and the Director-General by delegation, have wide powers of discretion in terms of the Aliens Control Act, such discretion does not extend to the instructions issued in the instant case. At least, the illegal workers ought immediately to have been placed on section 41 permits. Even then, however, they ought to have left South Africa at some stage in order to obtain passports, B1-17 employment contract exemptions and visas. Secondly, for the Director-General: Home Affairs to have authorized the release from custody of illegal migrants without first having placed them on section 41 permits was also stated to be irregular. Indeed, several officials appeared to have complied with the instructins only reluctantly, being aware of the absence of clear legal authority for the actions they considered themselves required to take. The two instructions by the Director-General of Home Affairs discussed above should be, and were, considered within the context of a changing policy environment and cannot simply be divorced from the realities existing at the time. Nevertheless, it was not clear even then that Mr Mokoena�s instructions were either necessary or reasonable, even within that context. There was a sense in which the Department�s admirably flexible and pragmatic approach appeared to have been taken too far in this case. Albeit that the employer stated that it was reliant upon these workers, the extent to which the Director-General was prepared to go to �assist� appeared to have been unusual and certainly caused some considerable degree of disquiet among some of the officials. Acceptance of gifts My investigation revealed no suggestion that the consignment of vegetables were anything other than a gift offered in appreciation of the assistance given by the Department and its officials at short notice and at a most inconvenient hour. It bears mentioning that Mr Mokoena acted appropriately and in terms of paragraph C.5.3 of the Public Service Regulations promulgated on 1 July 1999, when he apparently declined to take advantage of the proffered gift. On the other hand, the apparent acceptance of the gift of vegetables by certain of the other officials involved may be disapproved in the circumstances. Given that they had misgivings about the legality of the instructions to release the illegal workers, their conduct may arguably have fallen foul of the above-mentioned provision, which reads as follows: �An employee- C.5.3 does not use her or his official position to obtain private gifts or benefits for herself or himself during the performance of her or his official duties nor does she or he accept any gifts or benefits when offered as these may be construed as bribes.� (emphasis added) Recommendations Release from custody The impression gained during the course of the investigation was that the particular incident described was an isolated one and had arisen within a particular factual and legal context that no longer exists. Certainly, the Department of Home Affairs advised that the original policy was then being far more firmly enforced. In addition, the person who had issued the irregular instructions was, at the time of the conclusion of the investigation, no longer the incumbent in the office of the Director-General. Furthermore, any illegal worker involved in the matter had since been either required to leave the country or had had their presence legalised. It appeared, therefore that the matter had been resolved appropriately by the Department and that it was unlikely that a similar incident would take place. Irregular instructions Despite the foregoing, however, certain matters required additional comment. It emerged during the investigation of the and at least one other concurrent investigation involving the Department of Home Affairs that there existed within that Department some perception of a climate of fear, uncertainty and insecurity. It was difficult either to ascertain the extent of this perception or to ascribe that climate to any one particular factor, but senior management could not entirely escape some responsibility for such an unhappy state of affairs. This perceived atmosphere seemed to have contributed, in the instant case, to compliance with what were understood to be irregular instructions, despite strong misgivings by various officials. It was clear from paragraph C.3.2 of the Code of Conduct for the Public Service that an employee is required to do no more that �(execute) all reasonable instructions by persons officially assigned to give them, provided these are not contrary to the provisions of the Constitution and/or any other law �(emphasis added). There was and is, therefore, no obligation on any employee or official to carry out or implement an illegal instruction. Conversely, and by necessary implication, such employee or official has the right to query an instruction that is suspected to be irregular or illegal. I do not, by these comments, wish to encourage widespread insubordination. Rather I consider that it would be acceptable for an employee in appropriate circumstances to respectfully draw to the attention of the giver of the instruction the basis upon which the propriety of that instruction is considered to be open to doubt. If the supervisor persists in the instruction, the employee would be quite within his or her rights to then request that the instruction be reduced to writing, together with a recordal that the employee has expressed reservations in that regard or, indeed, has refused to comply with the instruction. This would not only provide the employee with a limited degree of protection (depending upon the nature or grossness of the illegality), but it would also facilitate any later investigation of the dispute. I accordingly recommended that the Department of Home Affairs consider disseminating an appropriate circular to its entire staff along the lines discussed above. It was hoped, thereby, to encourage a tolerant atmosphere conducive to wholehearted efficiency, and to open and respectful intra-departmental relationships. Acceptance of gifts Disciplinary action against the various officials who accepted the gift of vegetables was not recommended. Two particular considerations militated against such a course of action. Firstly, the Public Protector�s investigating officer was unaware of these actions by certain of the officials concerned prior to the interviews conducted with them in the course of the investigation into the allegations against Dr Ncholo. They were, consequently, not warned that anything said by them during the discussions could be used against them. It would, therefore, have been inappropriate to proceed against them in any way in consequence of the frank and open manner in which they assisted the investigation. Secondly, and in any event, I had concluded (see above) that there was no suggestion that the vegetables were either intended or understood to be in the nature of a bribe. On the contrary, they were an ex post facto expression of appreciation that apparently played no part in securing the assistance of either the Department or its officials. For these reasons, I did not believe it would be either fair or utilitarian to pursue this aspect further. Lastly, it was thought appropriate to raise the possibility of a reconsideration of the provisions of the policy in regard to the receipt of gifts as set out in the Code of Conduct. Preliminary research available to my office seems to indicate that the policy is out of step (and unnecessarily restrictive) compared with other countries operating subject to a constitutional dispensation. While I made no recommendation on this issue, a channel was opened for further discussion. 3. Case number 583/98 Introduction The complainant alleged that the African National Congress may have had a financial interest in the development of the drug Virodene P058; that the Minister of Health at the time, Dr N Zuma, may have taken or considered taking certain legislative steps to further this interest and that the Deputy President at the time, Mr T Mbeki, may have brokered an agreement in terms of which the affairs of the closed corporation developing Virodene would have been administered by a government appointee, paid out of the public purse. In this matter, I invited comments from several parties connected to the development of Virodene. I requested written comments from both the then Deputy President of South Africa and the then Minister of Health. I also had discussions with officials from the South African Police Service and the Medicines Control Council (MCC). Written inputs were also received from certain newspaper journalists. Investigation A considerable amount of information and documentation was received from the MCC. This gave me a good insight into the processes followed by the developers of Virodene in their endeavours to have Virodene registered as a medicine and to conduct clinical trials with Virodene. It further demonstrated the decision-making process of the MCC in considering the applications brought by the developers of Virodene (Cryopreservation Technologies CC or CPT). i) In certain correspondence in my possession between the MCC and the Minister of Health, the Chairperson of the Council expressed concern at statements made by Mr X, a member of CPT, that the ANC and/or certain high office bearers of the state were to receive improper advantage from CPT. The Chairperson of the MCC, stating that he had no way of knowing whether or not the information was correct, requested the Minister�s explicit assurance to the contrary. From documentation received from both the MCC and the Minister of Health, it was evident that the above statement had caused considerable consternation. In December 1997, the Minister wrote to both the Acting Secretary General of the ANC and to Mr X, the Administrator of CPT, requesting information on this matter. In both her letters, the Minister stated that she was not aware of any proposal wherein the ANC would be allocated 6% shareholding in the close corporation developing Virodene. She also stated in both letters that she was not aware of the origin of such a proposal and that it was a matter of great concern to her Ministry. In another letter in my possession written by the Legal Coordinator of the ANC to the Secretary of CPT, the following is said: �The ANC has absolutely no knowledge of this matter; has had no dealings with CPT and has authorised no one to enter into any agreement or to be in any way associated with your present or future business concerns on its behalf�� In the court action between members of CPT to prevent other members (such as Mr and Mrs X) from manufacturing or selling Virodene, the majority of the members stated under oath that they believed the statement by Mr X to be false. They also stated under oath that it was a great embarrassment for them that the government had been drawn into the conflict between members of CPT by the improper conduct of Mr and Mrs X. Mr X, the Administrator of CPT, in response to the Minister�s enquiries, stated that �at no time have they considered or intended to allocate or offer any member of Government or the Health Department, National or provincial with any of these shares and no such offer or suggestion has or will ever be made.� He apologised to the Minister for his previous poor choice of words and explained that the �6% of shareholding was intended for individuals or organizations who have done much to promote an awareness of the cause of HIV/AIDS patients as well as Virodene, and who are not yet aware that they are to receive such shares or benefits for their selfless dedication of efforts.� The Minister then wrote back to the MCC to the effect that she had found no evidence of impropriety. ii) On the allegation that the Minister of Health may have taken or considered taking certain legislative steps to further a financial interest of the ANC in the development of the drug Virodene, it is evident from the above that I could not find any indications that any person in government had any improper financial dealings with CPT or that any person may have had improper vested interests in the development of Virodene. I nevertheless scrutinised the legislative procedures followed by the Department of Health when it introduced the Medicines and Related Substances Control Amendment bill during the course of 1998. The proposed legislation drew widespread criticism from numerous interested groups, including the MCC. However, from none of this criticism could I infer that the proposed legislation was in any way influenced by the situation with regard to the development of Virodene. iii) On the allegation that the Deputy President may have brokered an agreement in terms of which the affairs of the company developing Virodene would have been administered by a government appointee, paid out of public purse, I received the following information from the Deputy President, the Minister of Health, the legal representatives of members of CPT and through legal documentation lodged in the court action between members of CPT: The members of CPT approached government on their own initiative after the first clinical tests on Virodene appeared to be positive. The members of government who were approached for funding of additional clinical tests, were Dr Zuma, as Minister of Health, and the then Deputy President, in his capacity as Chairperson of the Cabinet Committee on HIV/AIDS. Dr Zuma informed me that her interest in further research into Virodene had arisen from the alarming rate at which HIV infection is growing. In January 1997, the Virodene researchers gave a presentation to Cabinet, as a result of a request that Dr Zuma had made through the Deputy President. According to Dr Zuma, testimonies of two people who had benefited greatly from Virodene, as well as the scientific arguments advanced by the researchers, persuaded the government that further research into Virodene should be encouraged. Accordingly, the Departments of Health and Trade and Industry were charged with the responsibility of determining the nature and extent of any assistance which the government might extend. I was informed by the Deputy President that towards the end of 1997, he and the Minister had become aware that a dispute had arisen among the Virodene researchers. Apparently they were worried that if the dispute were not resolved, it could have resulted in the sale of CPT to persons who might sell Virodene at unaffordable prices, should Virodene have been licensed as efficacious medication. The dispute might also have led to the termination of the research, or to the inability of the researchers to co-operate with the MCC, which at the time had indicated its willingness to reconsider the Virodene protocol. Both the Deputy President and the Minister thought this should be avoided and accordingly met the researchers in an effort to persuade them to settle their dispute amicably. During these discussions, the idea was put forward that the government might appoint an interim administrator for CPT in an effort to resolve the dispute. The option arose because both sides accepted the neutrality of the government. From the court documentation at my disposal, it is evident that the dispute was eventually resolved through the courts. An independent interim administrator was appointed without any government intervention. No public funds were requested by CPT for this purpose and none were provided. Conclusion During this investigation, I could not find any evidence that the then Minister of Health, the then Deputy President, or any other person performing a public function had any financial interest in the development of Virodene P058. The Minister and the Deputy President became involved in this matter in their capacities as the Minister responsible for the Department of National Health and the Chairperson of the Cabinet Committee on HIV/AIDS respectively. I could also not find any evidence that the changes made last year to the Medicines and Related Substances Control Amendment Act, were in any way influenced by the situation with regard to the development of Virodene. Illustrative cases To provide further insight into the type of complaints dealt with during the year under review, a selection of complaints received and finalised, which are illustrative of some of the functions and responsibilities of my office, follows below: Case number: 1056/92 I received a complaint against the KwaZulu-Natal Department of Traditional Affairs. The complaint was that a certain chief, in his capacity as Chairperson of the Emazizini Traditional Authority, had refused to entertain the complainant�s applications for �Permission to Occupy Certificates� in respect of his residential site situated at Obanjeni, as well as two trading sites at Newstand, KwaZulu-Natal. �Permission to Occupy Certificates� are issued by the Department of Traditional Affairs. Before such a certificate can be issued, the consent of the relevant Traditional Authority is required. This is to ensure that the site in question has not already been allocated to someone else, or has not been set aside for other purposes. Our investigation revealed that the complainant had been informed by the Traditional Authority to follow the normal procedure, but had refused or failed to do so. It also transpired that the two trading sites in Newstand did not belong to the complainant. They had belonged to his father who had left them to the complainant�s mother. This was apparent from a �Certificate of Determination of Heir�, signed by the magistrate of Dukuza, on which this was clearly stated. My office informed the complainant that we had not found that he had suffered improper prejudice as a result of either the Department or the Traditional Authority. He was therefore advised to follow the correct procedure as regards the residential site at Obanjeni. The Department had also, in responding to our office, requested us to tell the complainant to vacate the trading sites at Newstand. We responded to the effect that it would be beyond my powers to do so. Case number: 125/95 The complainant was employed by a Municipal Council (which later become defunct) up until his retirement in 1995. Almost three years after his retirement, the new Transitional local Council, which replaced the Municipal Council, was still refusing to pay his pension benefits, alleging that there were no documents from the former Municipal Council to prove that he had contributed to the pension fund. The complainant�s attorneys unsuccessfully pursued the matter with the new Transitional Local Council and finally requested my office to assist the complainant. We took the matter up with the Transitional Local Council and it was proved that the complainant had indeed been a contributor to the pension fund. Case number: 683/97 Mr X complained to my office that the Department of Home Affairs refused to grant his application to have his forenames and date of birth changed. According to Mr X, he had registered his birth in 1985 at the age of 16, but the official who had completed the forms at the time, had written the forenames and year of birth incorrectly (1968 instead of 1967). He had been applying to have his names and date of birth altered since 1995, but this had been refused because he had been unable to provide supporting evidence. Here the complainant pointed out that he had been born in the Eastern Cape, that his parents were illiterate and that consequently events of his life had not been documented. I raised this complaint with the Department of Home Affairs on several occasions. The matter of having the complainant�s forenames changed was resolved after the first letter. However, regarding the change in the date of birth, we established that in terms of an internal policy, the Department of Home Affairs requires documentary evidence substantiating such an application. This could consist of:
The next stage of our investigation was to examine the available documentation held by the Department. We scrutinised the original forms signed by the complainant in 1985 and noted some inconsistencies in his version. It was nevertheless impossible for us to establish whether or not the complainant�s date of birth was registered incorrectly at the time. The last stage of our investigation was to evaluate the fairness of the Department�s policy whilst having due regard to the laws which might be applicable. We noted that the Identification Act provides for the inclusion of a person�s date of birth in the population register. An identity number is then allocated to every person, whose particulars are included in the population register. The identity number includes such person�s date of birth. I was therefor | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||