Defence minister fails to comply with Public Protector recommendation

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Defence and Military Veterans Minister Nosiviwe Mapisa-Nqakula and the national defence force number among 38 institutions named this week by Public Protector Busisiwe Mkhwebane that failed to comply with remedial instructions as per reports from her office.

Mapisa-Nqakula and the SA National Defence Force (SANDF) are named by Mkhwebane for failing to implement remedial action in the case of Babalo Mvithi, a former lieutenant colonel in the SA Air Force (SAAF).

The matter was taken up with the Public Protector in 2014 following a ruling by the Office of the Military Ombud, headed by retired lieutenant general Temba Matanzima in 2012. According to the investigation report, the matter was brought to the attention of Mkhwebane’s office after Mvithi was served with a notice of administrative dismissal. The report notes “in essence the complaint under investigation was that the SANDF failed to properly implement the recommendations of the Military Ombud”.

Matamzima’s office found Mvithi should be reinstated in his post as he was never served with a letter of administrative dismissal.

Submissions to the Public Protector by SANDF Legal Services are, in part, rejected in the report which states “the SANDF never reviewed or challenged the findings of the Military Ombud in court as required by the Military Ombud Act”.

Mkhwebane recommended the reinstatement of Mvithi as SO1 personnel inspector SA Air Force. She also recommended the reinstatement of his salary with annual increases and that Mapisa-Nqakula “must” institute disciplinary steps against “all SANDF officers involved in subversion of the Military Ombud’s recommendations”.

Speaking during a media briefing at her office in Pretoria on Thursday, the Public Protector named Mapisa-Nqakula as “the Defence Minister who has failed to implement remedial action in the case of Mvithi”.

“He and his family are without a source of income because of maladministration on the part of the Department of Defence and Military Veterans.

“The Military Ombud ruled in favour of the complainant but the department would not implement. At that point Mvithi escalated to us. We confirmed the finding of the Ombud and took remedial action, all in vain.

“Now and again he writes to me, complaining my office is doing nothing about his plight when in fact we have done all we could,” Mkhwebane said in the briefing.

Responding, Mapisa-Nqakula said she “took exception” to the Public Protector singling out the Mvithi report.

In a statement issued by DoD head of communications, Siphiwe Dlamini, the Minister is quoted as saying: “On receipt of the Public Protector’s final report in 2017, I acknowledged receipt and indicated my Department places on record its intention to review its findings and recommendations.  In November 2017, the review application was filed, but I am informed finalisation of the matter was delayed by the failure of the Office of the Public Protector to timeously file the record of proceedings.  The Public Protector has not opposed the review application and filed a notice to abide by the Court’s findings.  I am further informed the complainant (Mvithi) has not filed any opposing papers.  The only party to have done so is the Office of the Military Ombud.  Currently Heads of Argument are being finalised for filing where after the matter will be set down in the North Gauteng High Court.”

“A matter wherein we are seeking the Public Protector’s Report to be set aside as being unlawful and or unconstitutional in a Court of Law cannot be a matter where we are named and shamed for non-compliance, especially in light of the matters at hand and how it goes to the heart of section 200 of the Constitution requiring the defence force to be managed as a disciplined military force,” Mapisa-Nqakula is quoted as saying with the rider that she awaits the outcome of the review case and will abide by the Court’s decision.