On Monday 28 October, #UniteBehind submitted a review application to the North Gauteng High Court against the Public Protector (PP) Busisiwe Mkhwebane for her April 2019 report into corruption and maladministration at PRASA (PRASA II Report), which dealt with issues that had to be deferred from her predecessor Thuli Madonsela’s 2015 report, Derailed. #UniteBehind is requesting that the PRASA II Report be set aside, and for a cost order against the Public Protector.

On Friday 1 November, the office of the Public Protector filed its notice to oppose.

#UniteBehind was compelled to file this review application after close study of the Public Protector’s report revealed that it was, in short, a whitewash.

2015’s Derailed revealed staggering corruption at PRASA under the board of Sfiso Buthelezi and management of Lucky Montana. The extent of the wrong-doing at PRASA has been expanded by the Treasury Reports and Werksmans Reports that followed Derailed as part of the PP’s remedial action. Court cases such as Swifambo and Siyangena matters have provided shocking detail of the systematic perversion of our commuter rail agency for narrow interests. #UniteBehind has been committed to uncovering and remedying this criminality since our inception in 2017. PP Madonsela, mindful of the importance and urgency of the issues addressed in Derailed, chose to defer some investigations and findings of complaints – eleven in total – to a subsequent report.

In the PRASA II Report, Public Protector has failed to address the deferred complaints properly and effectively and, in the main, at all.

The seriousness of the deferred complaints, and the need for an effective investigation cannot be doubted. They concern allegations of financial mismanagement, procurement irregularities, improper expenditure amounting to billions of Rands of public funds, and abuses of office by the most senior management at PRASA, including the former GCEO, Mr Lucky Montana and former members of the PRASA Board, including the former Chairperson and present head of the Treasury Appropriations Portfolio Committee, Mr Sfiso Buthelezi. She failed to have any apparent regard to the investigations and reports that had been conducted since by National Treasury and PRASA, many of which pertain directly to the deferred complaints, in particular the complaints against Sfiso Buthelezi and former PRASA board member Vusi Twala. This despite the fact that the Public Protector was compelled to have this evidence before her as mandated by Derailed’s remedial action.

PP Mkhwebane did almost nothing to further the investigations. She did not obtain a single new piece of evidence. She interviewed only three new people, none of whom were implicated in the allegations, and appears not to have issued subpoenas. None of the whistleblower employees in PRASA, who had alleged intimidation and victimisation at PRASA, were interviewed. No search and seizure operations were conducted. Further, the remedial action in the PRASA II Report is wholly inappropriate and ineffective. Most embarrassing for the office of the Public Protector is that fact that the PRASA II Report does not deal with every complaint that was deferred – only eight of eleven deferred issues are addressed, albeit superficially. Most importantly, the various subsequent reports by Treasury and PRASA were ignored.

The PRASA II Report is evidence again of this Public Protector’s failure to appreciate the nature and importance of her constitutional function. The PP has a proactive investigative function and a duty to actively discover the truth where there are allegations or prima facie evidence of maladministration, malfeasance or impropriety in public life. The Public Protector is required, by the special constitutional mandate and powers vested in her, to act with vigilance and conviction of purpose. She has failed to comply with this duty, and failed the rail commuters and the broader public.

The Public Protector has produced a report that can give the public no confidence that the complaints have been properly investigated, that the truth has been uncovered, or at the very least that a concerted and committed effort has been made to uncover the truth. The public can also have no confidence that those responsible for impropriety and abuse of public office will be held accountable and that necessary measures will be taken to reform PRASA, a vital public service provider that has been failing the public for many years now. The corruption and state capture at PRASA has directly caused the collapsed of our commuter rail service. This collapse forces predominantly poor and working-class people to suffer terribly as they try to get to work, school, or home. This is a Public Protector in name only – in practice Adv. Mkhwebane is an Arch Defender of Corrupt Interests.

The Public Protector’s investigation and report leads to two ineluctable conclusions: that she is incompetent and incapable of performing of the functions of her office effectively, or that she has acted in bad faith and for an ulterior and improper motive.

#UniteBehind is represented by Advs. Janice Bleazard and Nomonde Nyembe. The attorney of record is Ben Prinsloo of Mathewson Gess. #UniteBehind’s founding affidavit attached and at the link: https:// drive.google.com/open?id=1qHdXUzzV2LnUVj1jdQ2rNkaCktHYoMWH. Full papers available on request.