Legal opinion clears AG Tsakani Maluleke of wrongdoing, with accuser facing blackmail charges

16 Sep 2022

The Auditor General was cleared of allegations made by her suspended human resources head, according to a legal opinion which was heard in Parliament on Friday.

The Auditor-General Tsakani Maluleke has been cleared of wrongdoing on a list of nine allegations made by suspended human resources head, Mlungisi Mabaso regarding decisions she took while Deputy Auditor-General — while her accuser will face charges for an attempt to blackmail her next week.

On Friday 16 September Maluleke, her team and the AG audit team appeared before Parliament’s oversight committee on the AG to discuss allegations made against her by the Mabaso (whose HR position is known as the Chief People Officer, CPO) about her conduct during her tenure as the Deputy Auditor General.

Read in Daily Maverick: What are the Auditor-General corruption allegations about?

In Parliament, Maluleke said that following a meeting between herself and Mabaso in June 2022, Mabaso had raised concerns about how she had spoken to him during a meeting.

Maluleke said she had then offered her apologies to Mabaso “for hurting his feelings”. Maluleke said she believed he was aggrieved that she had held him accountable for his and his team’s performance.

The AG made Mabaso’s claims public via a statement earlier in September, while Mabaso was suspended in July.

Maluleke served as deputy from 2014 to 2020 before she was nominated to become AG in 2020. She took over as AG following the death of Kimi Makwetu in November 2020.

According to Maluleke in that June 2022 meeting, Mabaso had said if she hurt him, “he would also hurt me”.

“He accused me of unprofessional, unethical or corrupt behaviour,” she told Parliament.

Maluleke then alleged Mabaso suggested a mutual separation — a financial settlement — in exchange for not publishing allegations against her.

The AG would repeat what was said by Mabaso to the Deputy Auditor General Vonani Chauke (who is the office’s accounting officer). After this interaction, legal opinion was sought by the AG’s office in conjunction with the audit committee, with respected firm Bowmans tasked with looking into the allegations against Maluleke.

Parliament’s oversight committee on the AG was also kept in the loop throughout the process.

“We have been extremely transparent to our staff and oversight bodies with regards to this matter,” she said.

Visit Daily Maverick's home page for more news, analysis and investigations

Mabaso is currently suspended and facing disciplinary processes, which will be heard next week, said Chauke. He was suspended in July for the attempted blackmail of Maluleke, according to Daily Maverick’s previous reports. He had been suspended for gross misconduct.

The legal opinion

In the legal opinion dated 24 August, which Daily Maverick has seen, it is stated, “it should be noted that the document entitled ‘Corrupt, unethical and unprofessional conduct’ drafted by the CPO makes no attempt to explain or motivate why he alleges that the (D)AG’s conduct was corrupt, unethical or unprofessional”.

During the meeting, Chauke said the legal opinion had been provided to MPs before the meeting for a chance to read through it.

Mabaso made claims such as that Maluleke approved relocation costs of former AG Kimi Makwetu, who passed away during his final days as AG from lung cancer in November 2020.

Other claims include Maluleke approved salary increases of Makwetu, advances to Makwetu as well approving “payment of interest to Mrs Makwetu on the deferred compensation of Kimi Makwetu, without the authorisation of Scoag (Standing Committee on Auditor General)”.

Other complaints raised by Mabaso include the hiring of individuals.

In its conclusions, the Krull legal opinion found: “the CPO has not indicated why he — who had been appointed to a senior executive position within AGSA — had not at the time of the incidents taken appropriate steps to prevent or report any wrongdoings he alleges were taking part. It should also be noted that if these allegations constituted irregular expenditure, it would have been reported by Agsa’s external auditors in its annual report, but nothing related to the allegations were found in Agsa’s integrated annual reports for the periods under review”.

While Maluleke was cleared of unethical, unprofessional and corrupt behaviour, the legal opinion said a calculation of interest paid to the deceased Makwetu should be revisited “and if indicated, proceedings to recoup any excess amount paid should be considered”.

Another recommendation from the legal opinion says that labour law implications in respect of the Head of Communications (which the legal opinion found that the decision to appoint him did not meet the ‘legality requirement’) should be considered.

‘That devil’

During the parliamentary meeting, MP Ntokozo Hlonyana (EFF) said: “we are here because of a man in the office of the AG who wanted unsolicited payments….instead the AG is now put on trial”. She questioned why the committee was not looking at the problem itself, namely Mabaso, whom she described as “that devil”.

Hlongwana said people’s names were dragged through the mud, including that of Makwetu, who was honest, credible and served his country.

One of the recommendations from the legal opinion said “The CPO’s conduct in making the allegations should be investigated for possible disciplinary proceedings, and should also be considered in respect of the provisions of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004)”.

Committee chairperson Sakhumzi Somyo said the committee would be meeting Makwetu’s widow to reassure her of what is happening.

In her closing remarks, Maluleke said her office would “continue to do the work we’ve been charged with”. DM

Categories:

South Africa

Tags:

DM is much better if you are signed in...

South Africa

The legal opinion

‘That devil’