Adv Busisiwe Mkhwebane

Public Protector of the

Republic of South Africa
Private Bag X677
PRETORIA
0001

12 June 2019

Dear Adv Mkhwebane

INVESTIGATION INTO ALLEGATIONS OF PROCUREMENT IRREGULARITIES,

IRREGULAR APPOINTMENT AND MALADMINISTRATION RELATING TO THE
APPOINTMENT OF MS T.H. BOTHA AS DEPUTY DIRECTOR: NATIONAL
SPECIALISED INVESTIGATION TEAM BY IPID

INTRODUCTION

1 We set out below the response of current and former IPID officials that are

implicated to the section 7(9) notices and the proposed findings of the Public

Protector in the aforementioned investigation.

2 This response is made on behalf of all the current and former IPID officials that

are implicated in the notice namely, Mr Robert McBride, Mr Matthews Sesoko,

Ms Nomkhosi Netsianda, Ms Marianne Moroasui, Ms Baatseba Motlhale, Mr

Innocent Khuba, Mr David de Bruin, and Ms Thereza Botha (hereinafter “the IPID

officials”). The IPID officials dispute all the adverse allegations and proposed

findings that are contained in therein.

3 IPID officials maintain that the proposed findings are informed by allegations by

a disgruntled and vindictive former employee, Mr Cedric Nkabinde which are not

credible or reliable. IPID has found Mr Nkabinde to be dishonest and responsible

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 for leaking information and deliberately undermining IPID’s investigation against

the former national Commissioner of the SAPS, Lt-General Johannes Khomotso

Phahlane on serious charges of corruption and money-laundering. He has also

been found to be unreliable by a court. The Public Protector is aware of this.

4 The IPID officials are also concerned and of the view that the proposed findings

in the notice are the result of a biased and flawed investigation.

5 The IPID officials have previously expressed its concern about the involvement

of Mr Vusi Dlamini in the investigation, given his former working relationship with

Mr Nkabinde and his ongoing personal engagement with Mr Nkabinde during the

course of the investigation.

6 The concerns of bias and ulterior motive in the investigation were exacerbated

by Mr Dlamini’s unacceptable behaviour in the course of conducting the

investigation. As you were previously advised, Mr Dlamini was aggressive and

rude during your investigators’ interviews with IPID members, and he certainly

did not display an open mind in investigating Mr Nkabinde’s complaint.

7 We refer you to the letters addressed to your office from the former Executive

Director, Mr McBride on 14 November 2018 and 28 January 2019 (which was

accompanied by the affidavit of Ms Nomkhosi C. Netsianda of 5 December

2018).

8 Despite raising these concerns with you, Mr Dlamini remained an integral

member of your office’s investigation team.

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9 As a result, and as is unfortunately borne out by section 7(9) notice, the

investigation your office has conducted is compromised and unfair. The IPID

officials accordingly reserve their rights in respect thereof.

10 Against this background, we proceed to address the allegations and errors in the

notice insofar as we are able in the time available. To avoid unnecessary prolixity

and repetition, we do not address the notice on a paragraph-by-paragraph basis

but rather deal with each of the issues that are the subject of your investigation

thematically and in turn. Any allegation or proposed finding that is not specifically

traversed must be taken to be denied.

The procurement of investigative analyst services from Fidelity Security

11 Fidelity Security Services (Pty) Ltd (“Fidelity Security”) was appointed in

December 2016 to provide IPID with the services of an investigative analyst (Ms

Thereza Botha). The procurement was made on an emergency basis, in

accordance with Treasury Regulation 16A.6.4 and Clause 19 of IPID’s Supply

Chain Management Policy.

12 Your office was furnished with the memorandum that was drafted by Mr D.W. de

Bruin and recommended by Mr Mathews Sesoko (National Head of

Investigations) and Mr V. Makhale (Acting Deputy director supply Chain

Management), and which was submitted to the then Executive Director of IPID,

Mr McBride on 20 December 2016 motivating for the emergency procurement.

For convenience, that memorandum is attached hereto marked “IPID1”.

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13 As appears from the memorandum and as was explained to your investigators,

IPID required the services of a specialist cellular telephone data analyst, to

ascertain the source of the death threats that were being sent anonymously to

an IPID member via Whatsapp. Death threats were sent to Mr Mandla

Mahlangu, an IPID investigator involved in the Phahlane corruption investigation

at the time. Copies of the Whatsapp messages conveying the death threats are

attached hereto marked “IPID2”. These messages were sent on 20 November

2016 and 19 February 2017 to Mr Mahlangu. The threats that were made on 20

November 2016 were also directed against Mr McBride and Mr O’Sullivan.

14 Mr McBride signed and approved the emergency procurement, in his capacity as

the Executive Director and accounting officer of IPID on 20 December 2016. The

Acting Deputy Director of Supply Chain Management (SCM), Mr V Makhale and

the national Head of Investigations, Mr Sesoko, recommended the emergency

procurement, which informed the Executive Director’s decision. The approval of

the emergency procurement appears from the signatures appended to the

memorandum submitted by Mr de Bruin.

15 The CFO, Ms Lindokuhle Ngcongo did not sign the memorandum. There was

nothing sinister about this. The CFO had left the office early that day (on the

20th) as she was feeling unwell, and she took sick leave the following two days

(on the 21st and the 22nd). The CFO was well aware of the emergency

procurement and instructed the head of SCM to assist Mr Sesoko with the

procurement. Her knowledge is confirmed in the email string dealing with the

emergency procurement, which is attached as annexure “IPID3”. The Public

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 Protector will note that the discussions between IPID’s representatives in the

aforesaid email string took place between 13 and 14 December 2016.

16 Before Mr de Bruin submitted the motivation for the emergency procurement for

approval, a quotation for the services was obtained. That quotation was attached

to Mr de Bruin’s memorandum and also, quite correctly, informed the Executive

Director’s decision on whether to authorise the procurement.

17 The Service Level Agreement (SLA) for Fidelity Security’s services was

concluded and signed by IPID’s Executive Director on 8 May 2017. The SLA

governed the provision of Fidelity’s services over the period 9 December 2016

to 31 March 2017. An addendum to the SLA was subsequently concluded to

extend the services to 30 June 2017 or at the conclusion of the services of the

investigative analyst. The services of the investigative analyst were terminated

at the end of September 2017, as confirmed by the letter of termination, which is

Attached marked “IPID4”.

18 The copy of the SLA that IPID has on file does not reflect the signature of the

Executive Director, as the original SLA that Mr McBride signed was sent to

Fidelity Security where it was lost. The Chief Director of Legal Services, Ms

Moroasui thus resent a copy of the SLA to Fidelity Security, together with the

Addendum, for signing. When Ms Moroasui received the signed agreements

from Fidelity Security, she forgot to submit them to the Executive Director for

resigning. Ms Moroasui attested to these facts, and explained her innocent

oversight, in an affidavit deposed to on 14 November 2018.

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19 The copies of both the SLA and the Addendum that IPID has on file accordingly

bear the signature of Fidelity Security, but not the Executive Director. However,

Ms Moroasui attests to the fact that the Executive Director did sign the original

SLA. The Executive Director’s approval of the conclusion of both agreements is

also apparent from his signature and approval of the memorandum under cover

of which he received the SLA and Addendum.

20 IPID paid Fidelity Security as per the SLA in the amount of R57,000 (incl. VAT)

per month, totalling R171,000 for services rendered between 1 January 2017 to

31 March 2017 (3 X R57,000).1 This payment was made by IPID on 17 May

2017. The payment was recommended by SCM Deputy Director, Ms Cele as

delegated by the then CFO of IPID.

21 IPID made a further payment of R342,000 to Fidelity Security in February 2019,

for the services that Fidelity Security had continued to render between April 2017

and September 2017 (6 X R57,000). After deliberating with the relevant IPID

officials, the recommendation to pay these invoices was issued by the CFO, Mr

Senna and were subsequently approved by the Executive Director.2 The

memoranda confirming this approval process are attached as annexures “IPID5”.

22 IPID recognised that the extension of the SLA to September 2017 exceeded the

threshold for contract extensions under the National Treasury Regulations. It is

1 While the SLA was backdated for services provided from 9 December 2017, no payment was made
for any services rendered in December 2017. Any assistance before 9 January 2017 was regarded as
pro bono.
2
We point out that, in the memorandum approving the payment, the Executive Director instructed
the CFO to “kindly inform the Public Protector about this development”.

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 for this reason that the CFO recorded in his memorandum dated 25 January

2019 to the Executive Director (annexure “IPID5”) that:

“Nation Treasury should have approved this variation. However, taking

into account the urgency of the matter, this could not be done at the time.

Once payment has been processed, National Treasury will be

approached to condone this.”

It not clear whether the CFO approached National Treasury, as he indicated he

would do.

23 In addressing this issue, the section 7(9) notice contains several errors.

23.1 First, the contention in paragraph 7.2.1.8 that only one IPID investigator

received a death threat is factually incorrect. Both Mr McBride, the then

Executive Director of IPID and Mr Mahlangu, an IPID investigator, were

the subject of the death threats. Mr Nkabinde’s contention to the contrary

is simply wrong. We refer you to the Whatsapp messages attached as

annexure “IPID2” above. As a result of these death threats, the State

Security Agency was engaged. Upon conclusion of their threat analysis,

the State Security Agency provided Mr McBride with protection.

23.2 In any event, the number and identity of the IPID members whose lives

were being threatened is irrelevant – a threat to the life of one IPID

member would suffice to justify an emergency procurement of specialist

services required to protect that member.

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23.3 Further, the contention (for instance at paragraphs 7.2.1.60 to 7.2.1.61)

that the identity of the threatened IPID officials had to be disclosed in the

reasons recorded for the emergency procurement in order for the deviation

from competitive bidding processes to comply with National Treasury

Regulation 16A.6.4 is wrong as a matter of law. There is no such legal

requirement.

23.4 Second, the suggestion in paragraph 7.2.1.10 that there is something

sinister or suspicious (“a red flag”) about the fact that a quotation for the

services of an investigative analyst was obtained from Fidelity Security two

weeks before a motivation was submitted for emergency procurement is

nonsensical. It is responsible and prudent fiscal practice for a quotation

for the cost of the services to be obtained before any approval is sought

and obtained for the procurement of those services. The cost of the

services must inform the decision on whether or not the services can and

should be procured, even in the context of emergency procurements.

23.5 Third, the fact that two weeks passed between the quotation for the

services being obtained from Fidelity Security (on 9 December 2016) and

the procurement being approved (on 20 December 2016) does not mean

that the emergency procurement was not justified. Following a normal

tender process in terms of IPID’s Supply Chain Management Policy would

have taken months, not a matter of weeks. The persistence of the threats

to the safety and security of IPID members over this period justified the

emergency procurement.

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 23.6 Fourth, the suggestion in paragraph 7.2.1.12 that Mr McBride misled the

Public Protector by contending that Ms Ngcongo was off sick on 20

December 2016 is unfounded. As explained, IPID staff recall that Ms

Ngcongo did indeed leave the office early as she was feeling unwell on 20

December, and then took sick-leave on the following two days (for which

she produced a medical certificate). The PERSAL system correctly

records Ms Ngcongo as being on sick-leave on 21 and 22 December. The

fact that Ms Ngcongo took early leave from work the day before (on the

20th) would not have been recorded on the PERSAL system as she did not

take a full day off as sick-leave. There is nothing irregular or suspicious

about this whatsoever. It is evident that Ms Ngcongo only obtained the

medical certificate on the 21st, so nothing can be deduced from the fact

that the medical certificate makes no reference to the 20th.

23.7 Fifth, while the CFO did not formally3 recommend the procurement (as she

had left work sick), compliance with IPID’s SCM policy was checked and

confirmed by the Acting Head of SCM and the affordability was approved

by the Executive Director, the accounting officer of IPID. Both signed and

approved the memorandum motivating for the emergency procurement.

The suggestion in paragraph 7.2.1.14 that these aspects were not

considered simply because the CFO did not formally recommend the

procurement is incorrect. This is also demonstrated by the fact that

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Although as stated above, the CFO was well aware of and did support the emergency procurement.

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 Finance processed all payments related to the services that were

rendered.

23.8 Sixth, the Executive Director, as the accounting officer, was entitled to take

the final decision on the emergency procurement without the CFO’s prior

approval. The Public Protector’s reliance on clause 19(d) of the SCM

Policy to reason to the contrary (for instance, at paragraphs 7.2.1.52 to

7.2.1.54) is based on a misinterpretation of clause 19(b). That is a

delegation provision (allowing for a delegation of the Executive Director’s

authority as the accounting officer to the CFO) where required in

emergency circumstances. The effect of the provision is not to deprive the

Executive Director of his legislative authority as the accounting officer, or

to render the exercise of that authority subject to the CFO’s approval. This

position is confirmed in section 31 (1) of the IPID Act and the relevant

provisions of the PFMA.

23.9 Seventh, the statement in paragraph 7.2.1.15 (which is repeated in

paragraph 7.2.1.24) that Ms Botha first reported for duty at IPID on 9

January 2017 is incorrect. We do not know what the “ubiquitous evidence”

mentioned in paragraph 7.2.1.24 in this regard refers to, so we cannot

address it. However, the true position is that Ms Botha commenced

working for IPID prior to December 2016. In fact Mr Nkabinde delivered

the cell phone data pertaining to the threats on 28 November 2016.

However, as indicated above, IPID only paid Fidelity Security for Ms

Botha’s services from January 2017. Prior to that, as McBride explained

in his letter to your office of 28 January 2019 that Ms Botha was assisting

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 IPID on a pro bono basis. In performing any tasks for IPID (whether on a

pro bono or paid basis), Ms Botha always reported to the national Head of

Investigations, Mr Sesoko, and she was also accountable to the Executive

Director of IPID.

23.10 Eighth, the statement in paragraph 7.2.1.21 that the Executive Director did

not sign the SLA is incorrect. As IPID has explained – and as is attested

to by Ms Moroasui – the original SLA was in fact signed by the Executive

Director. Although that copy was subsequently lost, a valid contract was

concluded between IPID and Fidelity Security.

23.11 Ninth, the contention in paragraph 7.2.1.39 that the “unsigned SLA cannot

be said to have been cost effective as envisaged by the above

constitutional injunction since it carried other hidden costs such as

accommodation and travel expenses that were borne by the IPID for the

services of Ms Botha”, is unfounded and incorrect.

23.11.1 The SLA was signed, as already explained.

23.11.2 It must be recalled that Ms Botha’s services were procured

pursuant to an emergency procurement. The emergency was the

threat to the lives of certain IPID officials. All reasonable means

were used to ensure that the procurement of these services was

cost effective. However, in order to receive these services from

Fidelity, it was necessary for IPID to assume responsibility for Ms

Botha’s travel and accommodation costs IPID accordingly

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 undertook to do so in clause 6.4 of the SLA, which stipulated that,

“IPID shall be responsible for the Investigative Analyst travel and

accommodation costs”.

23.11.3 These travel and accommodation costs were based on the

government approved rates. Payment of the costs incurred was

approved by both Mr Sesoko and Finance in line with clause 6.4

of the SLA .

23.11.4 There is no evidence whatsoever that these services could have

been obtained when they were required by IPID in a more cost-

effective manner.

In light of the above, the IPID dispute the conclusion in paragraph

7.2.1.74 of the Report, as well as the proposed findings in paragraphs

8.1.1 to 8.1.4.

The appointment of Ms Botha as Deputy Director: National Specialised

Investigation Team (NSIT)

24 As previously advised, Mr Nkabinde’s allegations pertaining to the appointment

of Ms Botha has already been the subject of independent investigation by the

Public Service Commission (PSC). The PSC found that there was no merit in

these allegations, or indeed in any other of Mr Nkabinde’s allegations in his

complaint to the PSC.

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24.1 We refer you to the notice of complaint that IPID received from the PSC

on 1 February 2018; IPID’s response thereto dated 21 February 2018 at

paragraph (h), together with the supporting documents (annexures F2 and

H1); and the decision of the PSC on 24 October 2018, which found the

complaint to be “unsubstantiated”. These documents are attached hereto

and marked annexure “IPID6”.

24.2 We fail to understand the basis on which the Public Protector considers it

necessary to reinvestigate the very same allegations. No explanation is

given in the section 7(9) notice for why the Public Protector considers that

the allegations still require investigation given the investigation and

findings of the PSC. In fact, section 11(1)(b)(iv) of the Rules Relating to

Investigations by the Public Protector and Matters Incidental Thereto,

specifically provides that the Public Protector can refuse to conduct an

investigation “where a matter is being or was dealt with by another public

body or dispute resolution forum and an investigation by the Public

Protector would lead to a duplication of efforts or resources”.

24.3 This section was clearly included to avoid a scenario where the Public

Protector is conducting an investigation which is, in effect, a duplication of

an investigation conducted by another public body.

24.4 Given that this issue was investigated by the PSC, and that IPID was

cleared of any wrongdoing, the Public Protector should substantiate why

a further investigation by her is necessary. At the very least, , the Public

Protector ought to specify where her findings differ from those of the PSC,

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 and explain why the findings of the PSC are incorrect. The Public Protector

has failed to do so.

25 Your proposed findings on Ms Botha’s eligibility for the post of Deputy Director:

NSIT and the procedure followed in her appointment are flawed. The proposed

findings are not supported by the documents and evidence furnished by the IPID

officials.

26 As regards Ms Botha’s qualifications and eligibility for the post, we draw your

attention to the following:

26.1 First, the post as advertised did not require a Bachelor’s degree for

eligibility for appointment. The advertised position described the skills and

competencies as follows:

“1. Relevant Bachelor’s Degree or equivalent qualification in

Law or law enforcement + minimum of 4 years’ experience
in the criminal justice and/or 10 years’ experience as an
investigation analyst.

2. Valid driver’s licence.”

26.2 Second, whether Ms Botha met the minimum requirements for the post

under the National Qualifications Framework was assessed by the South

African Qualifications Authority (SAQA). SAQA confirmed that Ms Botha

met the requirements. We attach the report that IPID received from SAQA

on 21 July 2017 marked “IPID7”. We also point out that under section 22(2)

of the IPID Act, the minimum requirement for the appointment of an

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 investigator at IPID is a grade 12 certificate and “knowledge and relevant

experience of criminal investigation” or “any other relevant experience”.

26.3 Third, it is not correct that Ms Botha lacked the relevant training and

qualifications in data analysis. No formal tertiary qualification (degree or

diploma) exists in the subject. However, as appears from her application

documents, Ms Botha had received relevant training in the field (including

Analyst’s Notebook software version 6; Analyst’s Notebook software

version 8; iBase 8; Geographical Information Systems; fingerprints; crime

statistics management; and ANACAPA Intelligence Analysis).

26.4 Fourth, the mere fact that Ms Botha was employed at SAPS in a position

designated as ‘Administrative clerk’ does not mean that she did not have

the requisite experience. As Ms Botha explained in her interview with your

investigators no occupational class existed in SAPS for the work she was

performing. Ms Botha also explained, at considerable length, the nature of

the analytical investigative work she was performing at the SAPS, despite

her formal job title. The nature of the duties that Ms Botha performed in

the SAPS was also described in her CV and accompanying documents.

26.5 Ms Botha’s work and experience as a data analyst at the SAPS was amply

evidenced in her application for the post at IPID. Her CV and application

speaks for itself, so we do not traverse its contents here. her application

evidenced not only that she had the requisite skills and experience as a

data analyst, but that she is internationally-recognised for her skills and

has a proven track-record of success in this field. Ms Botha has received

expert training in the field from the British National Crime Agency, and she,

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 in turn, has developed a training module for this skills set and been

responsible for training prosecutors in cell phone data investigation and

analysis in the NPA.

26.6 Ms Botha’s successful work in the SAPS as a data analyst, is attested to

in several letters of commendation that were submitted with her application

for the post, including from the Director of Public Prosecutions, KwaZulu-

Natal, Adv. Noko, Judge Combrink, several other former Directors and

members of the NPA in KwaZulu Natal who relied on Ms Botha’s expertise

as a cellular phone data analyst (Adv. Kander; Senior State Advocate in

the NPA, Adv. Paver; Adv. Magwaza and Adv. Harrison), and the Head of

the Priority Crime Management Centre, DPCI, Major-Gen. Arendse. None

of these letters appear to have been considered by your investigators.

26.7 Fifth, the suggestion in the notice (for instance, at paragraph 7.2.22.18)

that the selection panel erred in considering and relying on these

documents, and that the panel ought to have confined themselves to the

contents of Ms Botha’s CV is patently absurd. It was incumbent on the

selection panel to consider Ms Botha’s entire application to make a

properly informed and responsible decision.

26.8 Sixth, the account of Mr Khuba’s evidence at paragraph 7.2.2.22.19 is

incorrect and misleading. Mr Khuba did not “concede” any wrongdoing on

the part of the selection panel. Mr Khuba’s involvement was limited to the

interview process, yet Mr Dlamini insisted that Mr Khuba was supposed to

have shortlisted even though the shortlisting stage was already

completed.

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 26.9 Seventh, IPID has not been furnished with a copy of the submission of

SAPS’ Deputy National Commissioner Mgwenya referred to in paragraph

7.2.2.22.22 of the notice, so we cannot respond to it fully. However, the

reasoning in this paragraph – that because SAPS’s internal record of Ms

Botha’s career profile does not record her having attended a “Data Analyst

Course” means that she did not as a matter of fact have any such training

– is fallacious. Ms Botha’s training and skills were described and

evidenced in the documents submitted with her application for the post.

27 As regards the process followed for appointing Ms Botha, we wish to correct and

clarify the following:

27.1 There is no basis for Mr Nkabinde’s contention that IPID “changed and

manipulated” the post of Q9/2017/29 to suit Ms Botha.

27.1.1 This contention is founded on the incorrect assumption that a

previously-advertised post (Q9/2017/25) was the same as the

post to which Ms Botha was appointed (Q9/2017/29), only with its

requirements altered to suit Ms Botha. But this is incorrect. The

two posts were always distinct.

27.1.2 The fact of the matter is that two posts of Deputy Director were

anticipated to become vacant. Both posts were advertised and a

recruitment process was initiated for both. However, only one

post in fact became vacant, as the anticipated transfer of one

IPID’s Deputy Directors to SAPS did not materialise. Attached

hereto as annexure “IPID9” is the memorandum from Mr

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 Sibanyoni dated 28 April 2017, which confirms that the initial

intention was to place two Deputy Directors: Investigations and

Protection (NSIT).

27.1.3 When post Q9/2017/29 (the post to which Ms Botha was

appointed) was advertised IPID management determined that

post should be utilised to for recruit personnel with the analytical

capabilities that IPID urgently required. As explained IPID had no

such analytical capabilities at the time, and IPID required these

capabilities to enable it to perform its investigative functions

effectively. Filling this post was, therefore, treated as a priority.

27.1.4 IPID’s management has the discretion to prioritise the

appointment of any position that it sees fit, based on its internal

capacity and operational requirements. The institutional

knowledge on how to do so is vested with IPID management.

27.1.5 Further, we refer you to a circular dated 14 July 2014 from the

Director General of the DPSA (attached hereto as annexure

“IPID9”), which directed all heads of state departments to reduce

the recruitment period and vacancy rate in the public service. In

this instance the two Deputy Director positions were advertised

whilst the incumbents were still employed by IPID, as their

imminent transfer to SAPS was anticipated, in these

circumstances, it was responsible for IPID management to

advertise the posts, to ensure that these posts were not left

vacant during the recruitment process.

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 27.1.6 IPID reserves the right in all its advertised posts not to make an

appointment as stated in the advert. This guards against any

expectation of appointment to a post arising from the mere

advertisement of that post and the submission of an application

for appointment to it.

27.2 In the notice at paragraphs 7.2.2.7, 7.2.2.26 and 7.2.2.32 you address the

fact that Mr Baloyi was not transferred and never left the employ of IPID,

and therefore that his post never became vacant. These facts, while true,

do not support the inferences sought to be drawn from it, including that

IPID senior officers have been “dishonest” in their explanation of the

advertising of the two posts. IPID was entitled to advertise for a post that

it expected to become vacant. The mere fact that the post did not

ultimately become vacant, for the reasons explained, has no bearing on

the validity of the actions taken to advertise the post.

27.3 As is recorded in your notice (at paragraphs 7.2.2.19 to 7.2.2.21), the

report of Advocate Moloko Mamabolo on Mr Nkabinde’s grievance on this

same issue was disputed by IPID’s Mr Sesoko, Mr Khuba, Ms Motlhale,

Mr de Bruin and Mrs Netsianda. IPID’s Executive Director considered their

responses to the report and decided not to implement Adv. Mamabolo’s

recommendations, as was the Executive Director’s prerogative. The

Executive Director directed IPID’s Labour Relations unit to appoint a new,

competent and impartial investigator to investigate the matter afresh.

27.4 It is correct that no formal “job evaluation report” was compiled for the

Q9/2017/29 post. To the extent that there is an obligation for a job

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 evaluation report this would have been the responsibility of the Human

Resources (“HR”) Department.

27.5 The account of the disagreement between Mr Sesoko and Ms Phalatsi

addressed at paragraphs 7.2.2.22.9 to 7.2.2.22.11 is inaccurate and

misleading. Mr Sesoko did not instruct Ms Phalatsi to deviate from HR

processes; he merely required her to amend the draft advertisement for

the post to ensure that it reflected the correct requirements for a data

analyst. His handwritten note on the advertisement was simply a request

to amend the terms of the advertisement. The suggestion that there was

some other intent on the part of Mr Sesoko is firmly rejected by Mr Sesoko.

It was still the responsibility of HR to follow its own lawful processes as

would be required for this specific appointment. Mr Sesoko is not Ms

Phalatsi’s supervisor and was therefore not in a position to provide her

with any instructions not to follow HR processes.

27.6 Further, the statement in paragraph 7.2.2.22.12 of the notice that “Ms

Netsianda resorted to subterfuge and tactics to divert attention from the

issue at hand by unjustifiably accusing my investigation team member of

pointing fingers or intimidating her” is vexatious and unfounded. Ms

Netsianda was justified in making her accusations, and was honest and

forthright with your investigation team. The fact that she expressed

concerns of intimidation and that her account may have contradicted that

of Ms Phalatsi does not justify the conclusion drawn in the notice. Further

vexatious and unjustified aspersions on the conduct of Ms Netsianda and

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 other (unnamed) IPID senior officers are made in paragraph 7.2.2.26 of

the Report, and are categorically denied.

27.7 The statement in paragraph 7.2.2.22.13 of the notice that “she [Ms Hlalele]

confirms that Ms Phalatsi called her to her office on 24 April 2017 at about

16:30 to 17h00 wherein there was Mr Sesoko, Ms Netsianda and Ms

Phalatsi” was refuted by Ms Hlalele in a meeting held with Ms Netsianda

on 18 October 2018. We attach a copy of the transcript of this 23 minutes

long meeting as annexure “IPID10”. In the meeting, Ms Hlalele admits that

such a meeting never took place and states that, “I was never called. Yes,

that is why I am saying I was not part of the meeting. The only thing that

she called me, she called me to say I must call DPSA.” Ms Hlalele further

informed Ms Netsianda that, “I know she wants to trick me because when

she is talking about a meeting, I do not know any meeting”.

27.8 Furthermore, the statement in paragraph 7.2.2.22.13 of the notice that,

“according to Ms Hlalele, Ms Phalatsi then told her in the presence of Mr

Sesoko and Ms Netsianda that she must send a draft advertisement of the

post to the DPSA which she did” has also been refuted by Ms Hlalele.

During the meeting with Ms Netsianda, Ms Hlalele admits that, “she [Ms

Phalatsi] called me to say I must call DPSA. Then I called DPSA…”

27.9 The conclusions in paragraph 7.2.2.27 are unfounded for the reasons

stated herein, and are denied. There were no administrative irregularities

as alleged; nor were the rights or legitimate expectations of Mr Nkabinde

or any other applicant for the post of Q9/2017/25 adversely affected. A

21
 complete reason for why the post was not filled has been furnished – the

suggestion to the contrary is misleading and frankly, mischievous.

27.10 The suggestion in paragraph 7.2.2.28 that there is some irregularity in the

salary offered to Ms Botha is denied. The salary amount stipulated the

advertisement was a simple administrative error. That error could not

prejudice Ms Botha who, on her appointment, was entitled to be paid at

the correct salary level applicable to that post. However, in terms of the

IPID Recruitment Policy, the quality of the advert was supposed to be

confirmed by Human Resources Management.

27.11 The conclusions sought to be drawn in paragraphs 7.2.2.37 to 7.2.2.40 of

the notice are unfounded and incorrect. There was no attempt by Mr

Sesoko to “circumvent or bypass” any due process, and Mr Sesoko did

not act unlawfully in requesting Ms Phalatsi to amend the job

advertisement. The suggestion that these conclusions are “corroborated”

by the evidence of Ms Hlalele and Ms Netsianda is wrong.

28 The IPID officials dispute all the proposed findings in paragraph 8.2 of the notice.

28.1 The proposed finding in paragraph 8.2.1 that IPID improperly appointed

Ms Botha is unjustified and based on errors of fact and law, as explained

herein.

28.2 The proposed finding in paragraph 8.2.2 of a violation of Regulations 40(b)

and (d) and 4(a) and (b) governing the Public Service is unfounded. Post

Q9/2017/29 was advertised lawfully. The statement that Mr Sesoko

exerted “undue influence” or “interference” with IPID’s Human Resources

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 by an “unlawful persistence or unauthorised deviation”, and that Ms

Netsianda (the head of Corporate Services at IPID) was culpable for

“inaction in the face of such gross irregularity” is unjustified and incorrect

based on the aforesaid submissions. It was communicated to the Public

Protector’s investigators during an interview with Ms Netsianda, that the

issue of an advert of the post Q9/2017/29 was never escalated to Ms

Netsianda. The fact is, this matter was only brought to the attention of Ms

Netsianda by Mr Nkabinde when he was about to lodge a formal

grievance.

28.3 The proposed finding in paragraph 8.2.3 that the members of IPID’s

selection panel acted irregularly by failing to eliminate Ms Botha’s CV

because her CV “never reflected her position/ job title or rank from her

previous employer/ SAPS and periods spent in each position” is baseless.

28.3.1 Ms Botha’s formal position and job title of Chief Administrative

Clerk was recorded in her application, in Form SD1 which

accompanied her CV.

28.3.2 Ms Botha’s CV described the duties she performed in the SAPS,

and her CV and supporting documents evidenced that she had

the requisite experience to qualify her for the advertised position

at IPID.

28.3.3 Ms Botha was also interviewed by the selection panel, where the

positions she held (including her formal job titles) and the nature

of the work she performed at the SAPS were addressed and

interrogated. Further, Ms Botha (together with the other

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 shortlisted candidates) was subjected to a practical test of her

analytical skills, which she successfully completed.

28.3.4 The selection panel thus had the information they required to

make a proper and lawful decision. The mere fact that Ms Botha’s

CV did not state her formal job title at the SAPS is immaterial.

28.3.5 This proposed finding is also informed by material errors of law.

The appointment of Ms Botha complied with section 11(2) of the

of the Public Service Act. Further, your office has purported to

elevate IPID’s Recruitment and Selection Policy to a strict legal

code when it is – by its nature as an internal policy document and

on its express terms (in paragraph 1 of the Policy) – “a guiding

document”. In any event, there was no material non-compliance

with the Policy, including paragraph 10.5.7, and the fundamental

principles of recruitment (set out in paragraph 4 of the Policy)

were clearly met in the appointment of Ms Botha. That provides,

inter alia, that “All recruitment actions undertaken with the aim of

obtaining the ideal candidate with the necessary training, skill,

competence, potential and knowledge relevant to the

requirements of the post, from the relevant available target

group”.

28.4 The proposed finding in paragraph 8.2.4 that the Executive Director “failed

in his legal duty/ obligation to satisfy himself that Ms Botha qualified for the

said position of Deputy Director” is also baseless.

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 28.4.1 The records demonstrate that, on 21 July 2017, the Deputy-

Director: Vetting for IPID (Ms Saohatse) advised the Executive

Director that the requisite pre-employment screening had been

successfully conducted for Ms Botha, and that the South African

Qualifications Authority had verified that she had the minimum

qualifications required for the position. Copies of the aforesaid

memo and the SAQA verification are attached as annexure

“IPID7”.

28.4.2 On 24 July 2017, Mr McBride was also briefed by both the

Director of Investigations (Chairperson), Ms Motlhale (who had

chaired the selection committee) and the Human Resource

Management Advisor (Ms Hlongwane), in memoranda (a copy is

attached as annexure “IPID11”) motivating the panel’s

recommendation to appoint Ms Botha and describing the process

followed.

28.4.3 The Executive Director was thus able to satisfy himself that the

legal requirements for appointment were met. This would have

been a fact attested to by Mr McBride had he been interviewed

by your office.

The suspension of Mr Nkabinde

29 The recording of “common cause” matters on this issue, under paragraphs

7.2.3.1 to 7.2.3.3 of the notice, is not accurate.

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 29.1 The investigation and report of Adv. Moloto Mamabolo was not considered

to be reliable by the Executive Director IPID and requested that another

investigator be appointed a process which is currently being dealt with by

labour relations unit.

29.2 It is not common cause that Mr Nkabinde’s complaint to the Minister of

Police was a protected disclosure. IPID maintains that the complaint was

not protected as it was not made in good faith. At no stage prior to and

after his suspension did Mr Nkabinde raise the issue of a protected

disclosure. Mr Nkabinde had an opportunity to do so in responding to

IPID’s request for reasons not to suspend him. If Mr Nkabinde genuinely

believed that he was being suspended based on the alleged protected

disclosure he would have surely relied on this in opposing his suspension.

30 The allegations in Mr Nkabinde’s complaint were addressed under oath by the

former Executive Director of IPID, Mr McBride in reply to an affidavit that Mr

Nkabinde filed in support of Lt-Gen Phahlane’s application to set aside a search

and seizure warrant executed by IPID in their investigation against Lt-Gen

Phahlane. That affidavit, together with its supporting annexures – which include

sworn statements from IPID’s Mr Sesoko, Mr Khuba, Mr Mahlangu, Mr Binang

and Ms Botha, as well as sworn statements from several members of the SAPS,

all of which refute Mr Nkabinde’s allegations. We attach a copy of the

supplementary answering affidavit as annexure “IPID12”.

31 In that affidavit, Mr McBride detailed the history of Mr Nkabinde’s departure from

IPID, including the suspension and disciplinary measures taken against Mr

26
Nkabinde, the alleged “protected disclosure” to the Minister and the

circumstances of the settlement. Mr McBride attested to the following:

31.1 In 2016, Mr Nkabinde (who was then a principal investigator at IPID) was

appointed as a member of the Special Task Team that the Executive

Director established to investigate the then Acting National Commissioner,

Lt-Gen Phahlane.

31.2 During or about mid-March 2018, the Executive Director learned that

certain members of SAPS had approached members of IPID’s Special

Task Team, including Mr Nkabinde, promising them a promotion in SAPS

Crime Intelligence if they agreed to give false statements implicating the

Executive Director and other senior IPID members involved in

investigating Lt-Gen Phahlane.

31.3 On 16 April 2018, the Executive Director convened a meeting with

members of the Special Task Team to deal with the unlawful approaches

that had been made by SAPS. At this meeting the Executive Director

asked members of the Special Task Team to disclose whether any

member of SAPS had made unlawful offers that would compromise IPID’s

members. Mr Mahlangu raised his hand and confirmed that he had been

so approached. Mr Nkabinde did not disclose that he had been

approached.

31.4 In a separate meeting, Mr Mahlangu advised the Executive Director and

Mr Sesoko that he had also spoken to Mr Nkabinde about the approach

from SAPS Crime Intelligence. Mr Mahlangu advised us that Mr Nkabinde

had told him that he had also been approached by SAPS Crime

27
 Intelligence and had said that he would prefer to work for SAPS because

he did not feel appreciated at IPID. This account is supported by a sworn

statement of Mr Mahlangu.

31.5 Brigadier Manana Bamuza-Phetlhe of the SAPS Technical Unit also

attested in a sworn statement that: “Mr Nkabinde had also informed me

that General Ngcobo promised him a Brigadier post in return to bring Mr

McBride down. Mr Nkabinde would always give contradicting information,

now [I] know it was because he made up stories.”

31.6 On 23 April 2018, Mr Sesoko sent a letter to Mr Nkabinde advising him

that information at his disposal indicated that he had been approached by

members of SAPS “with a view of giving information about IPID’s

investigations and management”. In the letter, Mr Sesoko advised Mr

Nkabinde that he was released from the Special Task Team until the

Phahlane investigation was concluded.

31.7 Five days later, Mr Nkabinde addressed the letter to the Minister of Police,

dated 28 April 2018, that is alleged to be a “protected disclosure”. In this

letter Mr Nkabinde levelled various allegations of unethical conduct

against the Executive Director and other members of IPID (which

allegations were repeated in the affidavit that Mr Nkabinde subsequently

filed in support of Lt-Gen Phahlane’s review application).

31.8 On 25 May 2018, Mrs Maharaj (Provincial Head of KZN)notified Mr

Nkabinde of her intention to suspend him, and Mr Nkabinde was placed

under precautionary suspension on 4 June 2018.

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 31.9 Mr Nkabinde’s disciplinary hearing was scheduled to convene from 19 to

21 September 2018. At the commencement of the hearing, Mr Nkabinde,

through his legal representatives approached IPID and proposed to settle

the dispute by resigning, in return for which IPID would withdraw the

disciplinary enquiry and all related charges against him. On 19 September

2018, the parties signed the settlement agreement which is quoted in full

in the notice. As appears from paragraph 4 thereof, Mr Nkabinde retracted

his complaints against IPID and agreed that this should be conveyed to

the relevant authorities.

32 Notwithstanding the express withdrawal of his complaints by Mr Nkabinde in the

settlement agreement, the Public Protector records that she determined

nevertheless “to forge ahead” with her investigation of the allegations of irregular

appointment. We do not accept that this was a lawful exercise of the Public

Protector’s discretion. There was no sound and rational basis for doing so, and

certainly none is stated in the notice.

33 The conclusion at paragraph 7.2.3.29 of the notice that “There can be no

gainsaying [the] fact the Complainant made a protected disclosure to the Minister

of Police, Mr Bheki Cele, and subsequently, then Complainant was subjected to

a disciplinary action by the IPID for charges related to his whistleblowing” is

strenuously denied.

33.1 Mr Nkabinde’s complaint to the Minister was no more than false and

trumped-up allegations, which were made in bad faith.

29
 33.2 Mr Nkabinde’s complaint to the Minister was made after Mr Sesoko

advised Mr Nkabinde that he was aware of Mr Nkabinde’s failure to

disclose his engagement with SAPS officers intent on undermining IPID’s

investigation against Phahlane, and that Mr Nkabinde was being removed

from the Special Task Team pending an investigation into the matter. In

retaliation, Mr Nkabinde made false allegations to the Minister. Any

mention of this context is noticeably missing from the notice, despite your

office having been furnished with the relevant documents that attest to it.

Your “observation” in paragraph 7.2.3.39 that “there was a causal link

between the protected disclosure/ complaint and the occupational

detriment or the disciplinary hearing that the Complainant was

subsequently subjected to by IPID” is also made without any justification

whatsoever. The mere fact that one action follows another does not

establish a causal link between the two.

34 Further, since (as is recorded in paragraph 7.2.3.32 of the notice) you have

declined to enquire into the validity of the Settlement Agreement (correctly so),

you are bound to accept its terms. The Settlement Agreement must therefore be

taken to have settled, finally and in full, any and all claims that Mr Nkabinde had

against IPID; to have effected the resignation of Mr Nkabinde from IPID; and to

have terminated the disciplinary process IPID had instituted against him. In light

of these developments, any question about the validity of Mr Nkabinde’s prior

suspension is patently moot.

35 In light of the above, the IPID officials dispute the conclusion reached in

paragraph 7.2.3.33 of the notice.

30
36 The findings in paragraphs 8.3.1 to 8.3.4 are also all disputed. We refer to what

is stated above, and further note the following in respect of these paragraphs:

36.1 Contrary to what is stated in paragraph 8.3.1, there is no “substantiation”

of Mr Nkabinde’s allegations at all. There are merely Mr Nkabinde’s

spurious allegations. As noted at the outset, Mr Nkabinde has proven

himself to be dishonest and vindictive and to have ulterior motives as he

is determined to undermine IPID’s investigation against Lt-Gen Phahlane.

His allegations are false and ought to be rejected out of hand. The fact

that the Public Protector proposes to find that Mr Nkabinde’s allegations

are “substantiated”, without any basis for this finding, evidences bias or

incompetence on the part of her office.

36.2 There is no basis for the finding of a causal link made in paragraph 8.3.2.

Mr Nkabinde’s complaint to the Minister also does not constitute a

protected disclosure as suggested in this paragraph. Mr Nkabinde freely

and voluntarily concluded the Settlement Agreement in terms of which he

resigned from IPID. He did not “have to” resign as is stated in this

paragraph and was free to proceed with the disciplinary hearing which was

scheduled for hearing on the same day that he signed the settlement

agreement. This in itself suggests that Mr Nkabinde did not realistically

believe that he could prove his case at the disciplinary hearing and

therefore sough to negotiate a settlement.

36.3 In paragraph 8.3.3, you purport to determine the merits of the disciplinary

charges that IPID laid against Mr Nkabinde, without any basis whatsoever.

You are not in a position to determine that the charges that IPID laid

31
 against Mr Nkabinde were “spurious” or to find that “improper activities”

were in fact taking place at IPID as Mr Nkabinde alleged. These matters

have never been the subject of your investigation, and you do not have

the evidence before you to make this determination. Mr Nkabinde’s

allegations have, moreover, been withdrawn.

36.4 There is, therefore, no basis for the proposed finding of improper conduct

and maladministration in paragraph 8.3.4.

Prejudice occasioned by Ms Botha’s appointment

37 We have explained the circumstances of the advertisements for the posts

Q9/2017/25 and Q9/2017/29. We do not accept that the payments made for

these advertisements constitute “irregular” or “fruitless and wasteful

expenditure”, as suggested in paragraphs 7.2.4.1 and 7.2.4.2. The

advertisement for Q9/2017/25 was legitimately considered necessary by IPID in

anticipation of a vacancy that was expected to arise. The advertisement for

Q9/2017/29 preceded the appointment to the post that Ms Botha now holds.

38 As regards paragraph 7.2.4.4, we have also explained the travel and

accommodation costs incurred by IPID for Ms Botha. These were necessary and

approved operational expenses, and which IPID was contractually obligedd to

meet.

32
39 There is no merit in Mr Nkabinde claims, as recorded in paragraphs 7.2.4.5 and

7.2.4.6. We fail to understand the relevance of these paragraphs to the issue

under investigation.

40 As regards paragraph 7.2.4.8, we have explained that Ms Botha is being paid

the salary payable to all Deputy Directors, according to the salary scale at IPID.

IPID maintains that Ms Botha’s appointment was lawful and regular, and that she

is entitled to this salary.

41 It follows that the conclusions of irregular expenditure and financial prejudice in

paragraphs 7.2.4.13 and 7.2.4.15 are incorrect and unfounded. The conclusions

in paragraphs 7.2.4.14 and 7.2.4.16 that Mr Nkabinde and any candidates were

prejudiced by Ms Botha’s appointment is also unfounded. Mr Nkabinde did not

apply for the post that Ms Botha was appointed to, and Ms Botha was appointed

as the best candidate for the job.

42 For the same reasons, the proposed findings in paragraphs 8.4.1 to 8.4.6 are

unfounded and incorrect.

43 We trust that you and your investigators will take the contents of this response

into consideration before finalising the Report.

33