Public Protector Busisiwe Mkhwebane
public protector overstepped in pension complaint, argues treasury

Public Protector overstepped in pension complaint, argues Treasury

Public Protector Busisiwe Mkhwebane

Public Protector Busisiwe Mkhwebane

  • In
    April, the Public Protector issued a report on the termination of Mzunani ‘Rose’
    Sonto’s pension by the Special Pensions Appeal Board.
  • The
    Minister of Finance and the National Treasury are seeking to have this
    report set aside in the Pretoria High Court, arguing that the Public
    Protector has overstepped her authority.
  • Treasury
    says remedial action that seeks to hold the Minister accountable for the
    Appeal Board’s decision is “misplaced and irregular”.
  • The
    Public Protector has not indicated yet whether the action by the National
    Treasury will be opposed.

The Minister of Finance and the National Treasury will seek to set aside Public Protector Busisiwe Mkhwebane’s report on the
termination of Mzunani Roseberry ‘Rose’ Sonto’s Special Pension in the Pretoria
High Court on 28 June.

Earlier this month, GroundUp
reported
 that the Public Protector, whose suspension was announced on 9 June, had ordered that the Minister of
Finance should apologise to Sonto and set up a judicial review of the Appeal
Board’s decision to terminate his pension.

Special Pensions are administered by
the Government Pensions Administration Agency (GPAA).

In an affidavit
deposed by Director-General Dondo Mogajane
, the National Treasury is asking
the court to suspend the remedial action and monitoring provisions in the Public
Protector’s report. Treasury says that the Public Protector has overstepped her
authority.

Mogajane’s affidavit describes the Public Protector’s
circuitous route to finding that the Minister of Finance is ultimately
responsible for the conduct of the Special Pensions Appeal Board. According to
Mogajane, the National Treasury was only made the focus of the report well into
its writing. As such, Treasury only submitted its response to the Public
Protector’s section 7(9) notice (which invites implicated parties to submit
evidence) on the same day as we released her report, on 29 April 2022.

Mogajane does not seem to deny that the Appeal Board may
have been mistaken in its consideration of Sonto’s appeal, which was lodged
well outside of the statutory 60-day period of appeal. Instead, he argues that
while the Appeal Board may have acted under a mistaken belief in the extent of
its powers, “such action does not amount to improper conduct or
maladministration”.

As such, the remedial action that seeks to hold the Minister
accountable for the Appeal Board’s decision is “misplaced and irregular”.

Mogajane argues that the Public Protector’s finding against
the decision of the Appeal Board is “beyond the remit” of her office.
He says that the power to review a decision of the Appeal Board is held by a
court of review only.

Mogajane is open to the possibility that the decision was
incorrect or unlawful, but says that does not justify the Public Protector’s
finding that the Appeal Board’s conduct was improper and amounted to
maladministration, “which typically refers to inefficient or dishonest
administration”.

Mogajane says that the Minister has no legal standing to
review a decision of the Appeal Board, and lacks the authority to direct anyone
to start such action – only Sonto can do that.

The Appeal Board is an independent body, and since the
Minister played no part in, and, argues Mogajane, is not responsible for the
decisions, he cannot be directed to apologise for the decision.

Mogajane also argues that if the Minister is made to
implement the Public Protector’s remedial action, this will be enforcing “an
irrational and unreasonable decision”. Furthermore, this would mean that
anyone that is unhappy with the Appeal Board’s decisions could refer the matter
to the Public Protector for satisfaction, instead of the courts.

The National Treasury is not seeking any relief against
Sonto.

GroundUp spoke to the Public Protector’s spokesperson, Oupa
Segalwe, who said that they received a copy of the Minister’s application last
week. “The institution is studying the application and a decision will be
taken in due course,” he said.

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