'You're scaring investors': Tito Mboweni to Busisiwe Mkhwebane
Tito, protector cross swords over Treasury DG's speeding fine
Finance minister Tito Mboweni and the Treasury have launched an astonishing attack on public protector Busisiwe Mkhwebane, accusing her of tarnishing SA's image abroad and threatening the government's efforts to attract vital foreign investment.
Mkhwebane has hit back at Mboweni, saying he has no business interfering in her report on Treasury director-general Dondo Mogajane. She has also asked President Cyril Ramaphosa and National Assembly speaker Baleka Mbete to reprimand Mboweni for his comments about her.
The showdown arises from a R4,570 speeding fine issued eight years ago against Mogajane and is the latest round in the protracted battle between Mkhwebane and the finance titans.
Mboweni and Mogajane claim in court papers that Mkhwebane's report is damaging the Treasury and will deter investment. They have lodged papers in the high court to review and set aside her report's findings that Mogajane acted dishonestly and improperly by not disclosing on his job application that he had a criminal record for a speeding fine.
Mogajane's appointment could be "nullified" through a disciplinary process.
Mkhwebane's report is widely seen as part of a sustained onslaught against the embattled Treasury, which was targeted by former president Jacob Zuma and his allies.
Mboweni says in his court application that the National Treasury has a "material interest" in the public protector's findings that Mogajane was "blatantly dishonest".
"As a result of the report of the [public protector] irrationally concluding that [Mogajane] was dishonest, the reputation and image of National Treasury, domestically and internationally, stands to be severely impacted," says Mboweni.
Mogajane states in his affidavit that Mkhwebane's findings are "speculative conjecture" that "does violence to the mandate of the Treasury".
"This tarnished image cannot bode well for the image of the department in the minds of the public and the investing local and international community."
The latest round follows last year's bruising judgment against the public protector in the Absa lifeboat matter in which the Pretoria high court slapped her down as "impervious", "disingenuous" and without proper comprehension of her constitutional duty.
The finance ministry and South African Reserve Bank were among those that challenged her attempt then to change the mandate of the central bank.
Mkhwebane this week survived an attempt by the DA to cut short her tenure when the ANC decided not to support a request before the justice portfolio committee to expedite proceedings to remove her based on the Absa judgment.
Ramaphosa has been dragged into the latest row, with Mkhwebane in effect compelling him to take disciplinary action against Mogajane. He has been served with notice to appear before a disciplinary hearing chaired by higher education & training minister Naledi Pandor to be charged with "gross dishonesty" or "gross negligence".
Mogajane has been charged by Pandor with "intentionally committing a grossly dishonest act in breach of the integrity and ethical standard expected of you as a member of the Senior Management Service, thus nullifying the relationship of trust necessary for the employment relationship with your Employer ."
But the disciplinary action has been put on hold as Mboweni and Mogajane are challenging Mkhwebane's report in court, arguing that the incorrect information on Mogajane's application form was an "oversight" and that there was "no intention to mislead National Treasury or to be dishonest".
Mboweni and Mogajane both argue that Mkhwebane's findings are "irrational" and her remedial action constitutes an "unlawful breach of the separation of powers".
Mkhwebane's spokesperson, Oupa Segalwe, said yesterday that the public protector has seen Mboweni's court papers but she was "not certain if the minister has locus standi in the matter since no findings were made against him and the remedial action was directed at the president".
"As far as the public protector is aware, the president is implementing the remedial action," Segalwe said. He said Mkhwebane stood by the contents of her report.
Mogajane says in his papers that his admission-of-guilt fine is on his work record in the Treasury's human resources department. He said he decided to apply for his job on the eve of the closing date and the form was filled in by his office manager who "assumed" Mogajane did not have a criminal conviction. Mogajane said the State Security Agency, however, submitted a letter to then finance minister Malusi Gigaba mentioning the criminal record.
"Minister Gigaba, and indeed every person who participated in the selection and recruitment process in 2017, knew of my road traffic offence," Mogajane said.
He said the opinion of the security manager at the Treasury was that "the road traffic offence did not preclude me from being appointed as DG".
Mogajane says all this information was submitted to Mkhwebane by him and Gigaba in the course of her investigation. Former finance minister Nhlanhla Nene also wrote to her in April last year, stating: "I would like to re-emphasise that there has never been any intention on Mr Mogajane's part to withhold any information in this regard."
"As a result of the report of the [public protector] irrationally concluding that I am dishonest, the cold fact is that to the public at large and indeed the international community, Treasury is headed by someone who lacks integrity and dishonestly misled it to appoint him," says Mogajane.
"This finding ought to be set aside both because there is no evidence to support its veracity and … her findings constitute speculative conjecture that does violence to the mandate of the Treasury."
At a media briefing on Thursday, Mkhwebane listed the Treasury as one of the entities that had failed to implement her remedial action. A 2011 report by previous public protector Thuli Madonsela found that the government had mishandled the privatisation of the Venda Pension Fund and that pensioners had been prejudiced by this.
Mkhwebane said a special report was issued to help the Treasury implement remedial action but this is yet to be implemented.
"The excuse given by Treasury was that the implementation of remedial action will have an effect on the finances of the country," she said.
During a budget media briefing last month, Mboweni said he thought Mkhwebane "has a problem".
"I'm saying this as strongly as I can, knowing fully well that the office of the public protector is a constitutional structure … but the incumbent has a problem. I hope one day I can have a conversation with the incumbent without interfering, but just to advise."
Mkhwebane has written to Ramaphosa and Mbete to complain about Mboweni's comments. She has also insinuated the Treasury might withhold additional funds requested because of ill will towards her.
A statement from her office said: "Adv Mkhwebane is concerned that, given the reports that the minister has 'no confidence' in her, and she has made an adverse finding against the director-general, her repeated requests for more resources to bolster her investigative capacity might not bear fruit."