Mkhwebane opens criminal case against Joburg over Sibiya appointment

The office of the public protector has opened a criminal case against the City of Johannesburg, the latest salvo in a protracted battle over the appointment of the city’s head of its anti-corruption unit, Shadrack Sibiya.

According to Busisiwe Mkhwebane, the city did not disclose to her office all the relevant information around Sibiya’s appointment in November 2016, when their investigation, two years later, found the allegations against Sibiya to be unsubstantiated.

At the time, Mkhwebane’s office was not aware of a competence assessment report showing he had a “low cognitive level” and an unapproved promotion that led to a salary increase from R1.2m per year to more than R1.8m.

“It is against this very non-disclosure of critical information by the CoJ (City of Johannesburg) that my office shall lay a case with the SA Police Service (SAPS) to allow for criminal investigations for possible infractions of the PPA,” she warned in a letter sent to acting city manager Tiaan Ehlers on May 8.

Mkhwebane’s spokesperson, Oupa Segwale, told Sunday Times Daily the PP’s office confirmed that a case was opened on Wednesday.

“The case relates to possible contravention of section 11 of the Public Protector Act and a common law offence of possible defeating the ends of justice. It is against anyone within the City who may have played a role in the non-disclosure of information and/or documents which had a bearing on the investigation the public protector carried out into, among other issues, the appointment of Gen Sibiya,” said Segwale.

Mkhwebane said these matters were not highlighted during her investigation as the city withheld critical information contained in the document review report. At the time of her investigation, she found that Sibiya’s appointment and salary grading was compliant with the city’s legal framework. 

A competence assessment report — which said Sibiya was a “poor match” for the job and had “relatively low cognitive skill” — and the non-approval by the municipal council of his conditions of service were among the documents not submitted to the public protector's office when his appointment was investigated in 2018.

Since then, the matter has been brought to the fore again after the city asked Tshiqi Zebediela Attorneys to investigate Sibiya’s appointment, after a complaint by opposition party Al Jama-ah.

Allegations and counter-allegations have been flying between then acting city manager Floyd Brink and Sibiya, with Brink using the Tshiqi Zebediela Attorneys’ probe to revoke Sibiya’s investigative powers. Joburg mayor Mpho Phalatse then suspended Brink for acting against Sibiya without having the necessary authority.

Now both Sibiya and Brink are on leave, with the latter also facing allegations of misconduct related to R320m worth of procurement deals, a matter that was investigated by Sibiya’s team.

On April 18, Brink approached the office of the public protector with information related to specific facts and documents relating to Sibiya’s appointment. 

“Critical among the undisclosed information or documents, was the competence assessment report, which found Mr Sibiya to be unsuitable or a poor match for the role he was appointed to,” Mkhwebane said.

“Mr Brink further brought to my attention other irregularities that were not disclosed and not accounted for during the course of the investigation of Mr Sibiya’s appointment namely, a job description for the post of head of department (HOD) of GFIS [group forensic and investigation services] was approved on July 28 2017, after the appointment of Mr Sibiya on November 8 2016.

“However, no report was tabled before the municipal council to disclose that the said job description contained new requirements which indicated that the position of the HOD of GFIS was a new senior position and it had a different job description to that of Mr Sibiya’s substantive position.”

City of Johannesburg spokesperson Nthatisi Modingoane said the city had requested a meeting with the office of the public protector to discuss issues brought up in her letter. 

He further said all relevant documents were submitted to Mkhwebane during the course of her investigation. 

“We are confident that we can resolve this matter, and ensure that the GFIS is able to inter alia tackle corruption in the City,” said Modingoane.