Public Protector, advocate Thuli Madonsela, has found that the appointment of the CEO of the Eastern Cape Gamblind and Betting Board, constituted improper conduct and an act of maladministration.
Madonsela released the findings today of a probe into alleged maladministration by the Gambling Board with regard to the appointment of Mabutho Zwane as CEO.
Read the executive summar of her findings below:
Executive Summary
(i) "Not Above Board' is a report of the Public Protector in terms of section 182(1)(b) of the Constitution of the Republic of South Africa, 1996 (the Constitution) and section 8(1) of the Public Protector Act, 1994 (the Public Protector Act).
(ii) The report communicates the Public Protector's findings and directives on remedial action following an investigation into the alleged maladministration by the Eastern Cape Gambling and Betting Board (the Board) relating to the alleged irregular appointment of the Chief Executive Officer of the Board, Mr Zwane.
The complaint submitted by Mr R on 22 February 2010, was that the Board should not have appointed Mr Zwane to the position of CEO. It was said that he had failed to disclose that he had an intimate relationship with a public employee at the time of his application. It was further alleged that when he was subsequently dismissed and the matter taken by him to the Commission for Mediation and Arbitration (CCMA), the Chairperson settled improperly without a Board resolution.
It was further alleged that the Board wrongfully failed to implement the findings and recommendations of an external investigation that advised that Mr Zwane be subjected to disciplinary action and criminal charges.
(iii) The Public Protector considered and investigated the following issues:
(a) Was Mr Zwane's appointment as CEO improper on the basis that;
(b) The Board failed to comply with section 6(k) of the Eastern Cape Gambling and Betting Act which disqualified him;
(c) Mr Zwane did not meet the minimum requirements for the position of CEO;
(d) The Board failed in its duty to take action in line with the recommendations of the Cyber X Consulting report which recommended disciplinary action against Mr Zwane and that a criminal investigation be instituted into his conduct; and
(e) He was not appointed by the Board in "consultation with responsible Member" as required by section 12(1) of the Gambling and Betting Act.
(iv) The investigation process included correspondence, interviews with the relevant parties, and the perusal of documentation received. Applicable legislation, relevant case law, policies and prescripts, were also considered and applied.
(v) The Public Protector's findings are the following:
(a) The allegation that Mr Zwane was appointed despite having failed to disclose information that disqualified him from appointment to the position of CEO in terms of section 6(k) of the Gambling and Betting Act has merit. Although section 6 deals with Board members who are appointed by the responsible Member whereas the CEO is a member by reason of his position, nothing in the Act seems to distinguish his position from other Board members. The Board's actions in this regard were improper and constitute maladministration.
(b) At the time of appointment, Mr Zwane had a National Diploma obtained in 1997 and the required years of applicable experience, which meets the requirements as advertised. The advertised requirement was a Bachelor's degree or equivalent qualification with at least 5 years' experience (preferably) in Administration, Leadership or management at a senior management level'.
The allegation that Mr Zwane did not meet the minimum requirements for the position of CEO as advertised is accordingly, without merit.
(c) The Board did not authorise the then Chairperson to act on its behalf at the CCMA as required under section 11(5) of the Gambling Board Act,1997, and as a result the settlement agreement was finalised improperly, without the required authority. The conduct of the chairperson was accordingly unlawful and the settlement reached invalid. The Chairperson's conduct was accordingly improper and constitutes maladministration.
(d) The Board failed to properly consult with the MEC on the appointment of Mr Zwane and this amounts to non-compliance with the provisions of section
12(1)(a) of the Gambling and Betting Act. The Board's conduct was improper and constitutes maladministration.
(f) The allegation that Mr Zwane's appointment was improper has been substantiated. The Board's appointment of Mr Zwane constitutes improper conduct and an act of maladministration.
(vi) Appropriate remedial action to be taken as envisaged under section 182(1)(c) of the Constitution and section 6(4)(c)(ii) of the Public Protector Act is the following:
(a) The Chairperson of the Board should take urgent steps to ensure that procedures and legal prescripts are complied with for future appointments in compliance with the Gambling and Betting Act, and indicate what procedures have been put in place to avoid a recurrence.
