Appointment of Luther Lebelo as Public Protector’s chief of staff was totally above board

I write in response to Stephen Grootes’ article, published under the headline “State Capture redux: Luther Lebelo, the man trusted by Tom Moyane and Busisiwe Mkhwebane”, in Daily Maverick on Monday, 24 January 2022.

In essence, Grootes takes issue with the Public Protector South Africa’s (PPSA’s) appointment of Luther Lebelo as Chief of Staff and Deputy Public Protector Advocate Kholeka Gcaleka’s eloquent exposition of the due process that preceded Lebelo’s appointment in a recent interview with him on SAfm.

Riding on untested claims that the Public Protector, Advocate Busisiwe Mkhwebane, uses the PPSA to “fight political battles”, Grootes goes on to conclude that Gcaleka is in the same fictitious boat and proceeds to render her ineligible to hold a position of leadership in the office — all on a hunch. 

I demonstrate below, that, with respect, Grootes’ article is a work of distortion, exaggeration, misrepresentation and material omissions, all of which constitute the kind of conduct outlawed by the Press Code.

Here are the indisputable facts. On 11 October 2021, the PPSA advertised a vacancy for the position of Chief of Staff following the untimely passing of the previous holder of the title, Sibusiso Nyembe, the preceding month. On 17 November 2021, a three-member panel comprising Mkhwebane (chairperson), Gcaleka and Chief Executive Thandi Sibanyoni sat to interview a shortlist of as many candidates, which included Lebelo. It was only sensible that Mkhwebane chairs the panel because a chief of staff runs the executive authority office and reports directly to her.

Lebelo succeeded and went on to commence the two-year, fixed contract position, which incorporates communication functions, providing executive support to both Mkhwebane and Gcaleka, and being the links person between the Public Protector and all business units within the organisation, on 2 December 2021. 

The process followed — from advertising the opening to appointment — was entirely in line with the PPSA recruitment and selection policy.

Prior to offering him the position, the PPSA Human Resource Management and Development (HRMD) Unit carried out a thorough vetting process on Lebelo, independently from the interview panel. This entailed ascertaining that he does not have a criminal record, verifying his academic qualifications with the competent authority and checking in with his previous employers, the most recent of which was the Department of Communications and Digital Technologies. 

Incidentally, no questions were ever raised when Lebelo climbed the ranks of that department to take up, among other roles, that of chief director: media, marketing and communication.

In addition to criminal, qualification and reference checks, the HRMD obtained from Lebelo and scrutinised a “mutual separation agreement” entered into between himself and the South African Revenue Service (SARS) at the time of his departure from the tax authority. The agreement puts beyond doubt the fact that SARS did not dismiss Mr Lebelo, but parted ways with him amicably. 

“The parties have entered into this agreement without any admission of liability… the employee acknowledges and confirms that the termination of employment with the employer does not constitute a dismissal by the employer,” the agreement reads, in part. SARS also paid him R1.2-million to leave as part of the “no-fault” settlement.

The facts above underscore Mr Grootes’ own admission in the article that, when he probed Gcaleka about the decision to appoint Lebelo, he could not find her wanting on the crucial point of compliance with the law. “It is important to note that according to the law, Gcaleka is surely correct,” he says in his article.

Besides, pitting the role of the Deputy Public Protector against the legal prescripts is unfair, unjust and illogical. 

Grootes’ concession explains why he tries ineffectively to build a subjective case of morality and ethics against the PPSA. To do so, he relies heavily on what he admits are mere “accusations” as opposed to findings, that Lebelo was the “right-hand man of former SARS commissioner Tom Moyane” and on “what two inquiries have found about his conduct”.

The PPSA is only aware of commentary in the Nugent Commission of Inquiry report that Lebelo abused the process of the inquiry when he insisted on presenting his affidavit as a witness and having a copy thereof uploaded on the commission website. The courtesy was extended to many other witnesses.

There was also commentary about the role he played — as he was entitled to, given his position then as group executive for employee relations at the revenue collector — in human resources matters involving some former SARS employees. Moreover, there was the view that Lebelo had brought SARS into disrepute in 2016 when he published, in his personal capacity, an article in which he criticised ratings agencies. He was disciplined for this by Moyane.

The PPSA has no knowledge of the findings of any other commission, which are apparently so adverse as to have precluded Lebelo from appointment. Grootes would do well to shed light in this regard.      

If there were to be legal consequences following the Nugent Commission’s remarks, we are certain SARS would have implemented those, instead of paying him a lump sum from state coffers. 

We are also certain that the Department of Communications and Digital Technologies would have been exposed by an impartial media for employing him, if those remarks warranted consequences upon him. It is curious if Grootes would have preferred if the PPSA applied consequence management in relation to what transpired at SARS through its recruitment process.

Now that we have dealt with the facts, a number of questions linger: Why is Grootes aggrieved at Gcaleka’s expressive articulation of the PPSA’s above-board recruitment processes? The DPP’s legislative role is to assist the Public Protector in executing her duties. This much, the DPP communicated from her very first day on duty. Is she now being expected to adjudicate on a furtherance of an external political agenda which she clearly stated she will not direct her energies towards?

Refusal on her part to subject the institution to this now leads to her being threatened. Is this not bullying?

What discourse will a displayed division of the PPSA leadership serve in fulfilling the institution's critical mandate to be a vanguard of a democratic South Africa? 

Is it not rather commendable that the PPSA has a leadership that is steering the mandate of the institution to the exclusion of all external factors which seek to derail their focus from the challenges facing the grassroots communities in the country and strengthen the institution they lead?  

Disturbingly, why is Grootes seemingly pre-empting parliamentary processes about the future leadership of the PPSA and appearing to be launching a premature campaign to sway public sentiment in this regard — on a whim?

Whatever the answers, the PPSA knows better than to allow such distractions. A lot of work is on our dashboard. 

Students across the land await the outcome of the investigation into systemic problems in the tertiary education sector which keep them out of lecture halls, while women anticipate the outcomes of a systemic investigation into the reception they get when they visit justice system institutions for protection from perpetrators of gender based-violence. 

We’d rather focus our attention there. DM

Oupa Segalwe is spokesperson for the Public Protector.

NB: Daily Maverick stands by Stephen Grootes’ analysis.