By: Clyde N.S Ramalaine
In the aftermath of the dissemination of my initial article titled “Ongoing Crisis at C-BRTA: Mbalula’s Trusted Lieutenant- CEO Mboyi’s Intermittent MPhil Claims, Board Negligence, PSC Inaction, and the Implications of ANC Cadre Deployment” on March 2, 2024, accessible at https://ramalainetalkpoliticalanalysis.wordpress.com/, Ms. Zodwa Mtsweni, the Communications Manager of the Public Service Commission (PSC), engaged in her official capacity, proffering a response in the form of a comment on the aforementioned blog post.
In response to Ms. Mtsweni, I conveyed the necessity for official correspondence emanating from the Public Service Commission (PSC), bearing the authority of the organization, to facilitate a comprehensive and articulated reply. Such a response would provide me with the opportunity to expound upon and elucidate the intricate details of the matter at hand. This procedural step is envisaged to enable the South African public to judiciously assess the veracity of the concerns articulated in my initial exposition, specifically with regard to the perceived inaction of the PSC. Furthermore, it seeks to scrutinize whether the PSC, as characterized by Ms. Mtsweni, operates within distinct silos or transparently endeavors to clarify matters surrounding its purported lack of awareness concerning the focal subject of my article.
Regrettably, the Public Service Commission (PSC) has chosen to adopt a stance implying a deficit in the author’s understanding of its jurisdiction and mandate regarding the original article on the C-BRTA. This insinuation necessitates a clarification of the legislative acts delimiting the purview of the PSC. The PSC’s recourse to reiterating various legislations is not only laborious and inconsequential but also devoid of authenticity, seemingly designed to obfuscate the genuine issues at hand, particularly its integral role in the CEO appointment unfolding saga. Despite intermittently disavowing involvement, the PSC has undeniably left its imprint as an active participant in this narrative.
Upon careful scrutiny of the article, its fundamental focus becomes self-evident, primarily involving the C-BRTA Board to whom Mr. Mboyi, the CEO, reports. Despite receiving grievances from senior managers within the C-BRTA, the Board’s response has been notably deficient. Secondly, another pertinent matter raised in the article concerns the subject of salary increases that the CEO and others received hardly 5 months into their respective appointments. The PSC with its Media Statement pretends no knowledge of any of the aforementioned as ever raised with it as an institution, when this response will lay bare evidence of the PSC’s knowledge, activities, and role in a documented nature.
While the original article acknowledges budgetary concerns related to over-expenditure on legal matters, the paramount emphasis remains on the CEO’s appointment. The Public Service Commission (PSC) is cautioned against appropriating the prerogative to redefine the central contention of the article or manipulate it to align with its obscured agenda. Contrary to any prevailing misconceptions, the issue at hand transcends the C-BRTA as a mere national entity; it extends beyond Mr. Mboyi’s tenure and is centered on the appointment of a CEO whose qualifications have been subjected to manipulation. This manipulation is discernible in the incongruities surrounding the initially claimed, subsequently clarified, and ultimately omitted MPHIL designation in Annual Reports. In the face of challenges posed by senior managers, the CEO resorted to tyrannical behaviour, shielded by both the Board and the then Minister of Transport, Fikile Mbalula, while the Minister falls under the purview of the Public Service Commission.
The PSC’s expeditious release of a media statement has resulted in a conspicuous oversight of the pivotal focus of the article. The central point has never been the C-BRTA as an entity—a convenient claim made by the PSC to distance itself from legal responsibility, thereby evading its designated role. It is imperative to reiterate to the PSC that the core axis of the article revolves around the appointment of the CEO, an action exclusively within the purview of the Minister. Notably, both the Minister and the department fall under the jurisdiction of the PSC, serving as the vanguard of the State.
Hence, the basis for this right to reply emanates from the Public Service Commission’s (PSC) Media Statement dated March 4, which is directly aimed at my published article.
This response will address the various aspects of the PSC’s reply, systematically refuting its assertions and furnishing compelling corroborative evidence to underscore the inherent lack of veracity in the PSC’s stance on the subject. Subsequently, it will scrutinize the apparent deficiency in proactivity, mandated by the Constitution, exhibited by the PSC in its role as the custodian of the state, particularly in instigating and advocating for the extension of its purview to encompass public entities characterized by good governance and transparency as foundational tenets.
Ultimately, this reply aims to elucidate the reasons prompting South Africans, given the concerns raised regarding the appointment of the CEO of C-BRTA and the grievances brought before the PSC, to harbour apprehension concerning the potential repurposing of the state’s vanguard. This warrants a meticulous investigation to ensure the integrity and efficacy of the institution in fulfilling its mandated responsibilities.
Please note, out of a recognized need for compliance with and in respect of the confidentiality of the C-BRTA, PSC, etc., all EXHIBITS herein referred to are in the possession of the author and can be made available upon request.
Let us commence by addressing the categorical assertion proffered by the Public Service Commission (PSC): “The PSC wishes to state that it has no record of such a matter having been brought to the attention of the Commission for investigation.” In essence, the official stance of the PSC is an absolute lack of awareness, particularly at the official echelon, regarding any complaint ever lodged within its purview.
Allow me to categorically state that this proclamation by the PSC is bereft of veracity and constitutes a dubious endeavour at deception. I hereby direct the PSC’s attention to the official communication from the Office of the Public Protector dated December 9, 2022, with reference CMS-114089, dispatched from the email address reginaldm@pprotect.org (Exhibit A).
Advancing further, let us transcend the confines of the Public Protector’s communique referenced as CMS-114089 and continue to ask has the Public Service Commission has ever been the recipient of any complaint from the personnel of the Cross-Border Road Transport Agency (C-BRTA) concerning the Chief Executive Officer (CEO)? To jog the PSC’s memory, attention is drawn to its own media response dated February 23, 2023(Exhibit B), disseminated by Bobby Jordan. In addressing a query from the Sunday Times pertaining to the reception of a complaint from C-BRTA staff regarding concerns about the CEO, the PSC acknowledged receipt of such a complaint in 2022. Nonetheless, the PSC asserted that, since the matter involved a public entity, it fell beyond the scope of its mandate, prompting the referral of the complaint to the Cross-Border Road Transport Agency on November 30, 2022. Herewith is the exact question and subsequent response.
Question: “Has the PSC received some form of complaint/ grievance from the staff within CBBTA[ CRBTA]related to concerns about the CEO? If so has the OPSC taken a decision yet on whether to investigate the grievances/ allegations?”
Answer: “The Public Service Commission (PSC)did receive a complaint about the CEO of the Cross Border Road Transport Agency in 2022. The scrutiny of the complaint established that the complaint relates to a public entity, which does not fall within the mandate of the PSC. To this end, the complaint was referred to the Cross Border Road Transport Agencies on 30 November 2022, as the matter falls outside the mandate of the PSC.”[sic]
Moreover, as elucidated in my preceding discourse, the matter concerning the C-BRTA and its CEO underwent parliamentary scrutiny by the official opposition party, the Economic Freedom Fighters (EFF). It is imperative to underscore that Parliament, the Minister of Transport, and the Department collectively operate within the jurisdiction of the Public Service Commission.
In the fourth instance, it is imperative to scrutinize whether any personnel or officials of the Public Service Commission conducted an investigation into the aforementioned complaints, and if so, does there exist a designated case number to this effect?
Contrary to the PSC’s repudiations in both its comments and the official media statement released on March 4, 2024, compelling evidence indicates the existence of a self-generated PSC Case Number: 9920221128134919 (Exhibit C) and a compilation of emails (Exhibit D) corroborating communications sent and received from Themba Vukeya with email address ThembaV@psc.gov.za and Mbuso Ntshangase with email address MbusoN@opsc.gov.za related to the investigation.
On the subject of complaints raised with the PSC on the CEO appointment and, in addition, the salary increases of the executive team, the evidence is a letter penned by the CEO Mr. Lwazi Mboyi. The CEO’s letter with the subject matter: “Re Referral of a Case of alleged Corruption Reported to the National Anti-Corruption Hotline (NACH) Case Reference Number 9920221128134919,” addressed to Advocate Dinkie Dube, the Director General of the Office of the Public Service Commission. This letter of the C-BRTA CEO Mboyi to the PSC in its introduction reads: “Reference is made to the correspondence received regarding the alleged Corruption reported through the National Anti-Corruption Hotline, dated 30 November 2022. As highlighted in the acknowledgment letter of 1 February 2023, the contents were received on 26 January 2023 and received by the CEO on 31 January 2023.” (Exhibit E)
The content and intention of Mboyi’s letter were to dismiss the issues raised and claim all have been addressed. That by itself can be engaged, particularly since Mr. Mboyi as CEO is the accused. Yet, the more pertinent issue here for this discourse is the PSC in communication with the C-BRTA, which its Media Statement categorically denies.
The query regarding the PSC’s receipt of a complaint in 2022 about the C-BRTA and its CEO is thus herewith unequivocally affirmed by at least the following six distinct sources:
The Public Protector’s official communique to the PSC and the complainants.
PSC’s own media responses.
The letters between the PSC and the C-BRTA.
The undeniable evidence of a PSC Case number is already alluded to.
Correspondence in email exchanges between C-BRTA staff and PSC Officials.
The knowledge of a meeting held around October and November 2023 between PSC Officials and the CEO of the C-BRTA.
It is salient to note that in its attempt to elucidate its position, the PSC asserted that it referred the matter to the C-BRTA on November 30, 2022. This precipitates an inquiry into the authority the PSC assumed as derived to refer a matter, addressed by the Public Protector, to the PSC on an entity (C-BRTA) over which it reminds us it lacks legal jurisdiction. From where would this mandate to refer the subject be derived from in this instance given the fact that the C-BRTA is a public entity that the PSC has no jurisdiction over? Additionally, elucidation is sought regarding the specific individual[s] at the C-BRTA to whom the PSC directed this matter, accompanied by evidentiary documentation of such reference.
In response to the statement provided by the Public Service Commission (PSC) in its media release, which asserts, “It should be stated that the PSC exercises its powers and performs its functions without fear, favour, or prejudice in the interest of the maintenance of effective and efficient public administration and a high standard of professional ethics in the Public Service.”
While the intention behind the aforementioned statement may project a commendable commitment to impartiality and ethical standards, a pivotal question remains unanswered by the PSC. Specifically, has the PSC, in the execution of its duties, convened a meeting with the Chief Executive Officer (CEO) of the Cross-Border Road Transport Agency (C-BRTA), Mr. Lwazi Boyi, concerning the subject matter encapsulated in the complaint officially documented by the Office of the Public Protector and voiced by a group of concerned staff?
The existing records indicate that officials from the PSC did indeed organize such a meeting, conspicuously abstaining from seeking representation from key stakeholders such as the Minister, Board, Transport Department, or the C-BRTA Human Resources. Moreover, the notable absence of engagement with the whistleblowers or complainants raises concerns regarding the PSC’s purported commitment to functioning without fear, favour, or prejudice. The act of soliciting a meeting with the accused, divorced from the inclusion of the aforementioned entities, introduces an element of suspicion and raises questions about the PSC’s approach to matters of this nature.
Consequently, it becomes material for the PSC to confirm or refute the occurrence of such a meeting with Mr. Lwazi Mboyi. I posit this inquiry with the explicit assertion that the date of this meeting is not only ascertainable but has been duly recorded for reference. This inquiry underscores the necessity for the PSC to provide unequivocal clarity on its engagements with the implicated parties, thereby upholding the principles of transparency, accountability, and adherence to professional ethics that the PSC purports to champion in the broader context of public administration.
The PSC in its Media Statement reminds us that: In addition, section 196 (4) (f) stipulates that the PSC may either of its own accord or on receipt of any complaint –
investigate and evaluate the application of personnel and public administration practices and to report to the relevant Executive Authority and Legislature;
investigate and monitor adherence to applicable procedures in the Public Service; and
advise National and Provincial organs of State regarding personnel practices in the Public Service, including those relating to the recruitment, appointment, transfer, discharge, and other aspects of the careers of employees in the Public Service.
The assertion put forth by the Public Service Commission (PSC) posits that it is constrained by Section 196(4)(f), which outlines its role in investigating and evaluating personnel and public administration practices, advising organs of the State on personnel practices, and reporting to the relevant Executive Authority and Legislature. However, it is imperative to underscore that this legal provision, while delineating the ambit of the PSC’s authority, does not absolve it of the responsibility to address concerns related to the Chief Executive Officer (CEO) appointment within the Cross-Border Road Transport Agency (C-BRTA). The premise for my conviction rests on two fundamental aspects.
Firstly, Section 196(4)(f) does not expressly exempt the PSC from scrutinizing matters pertaining to CEO appointments or executive leadership within public entities. The appointment of a CEO involves critical personnel practices that significantly impact the effective functioning and governance of public institutions. Therefore, the PSC, in its role of monitoring adherence to applicable procedures in the Public Service, should extend its purview to matters of CEO appointments, especially when concerns are raised regarding the due process and qualifications involved.
Secondly, the PSC’s obligation to advise National and Provincial organs of State on personnel practices includes offering guidance on the appointment, recruitment, and other aspects of employees’ careers in the Public Service. The CEO of a public entity is undeniably a pivotal position, and the adherence to proper procedures in their appointment is integral to maintaining the standards of professional ethics and effective public administration.
In light of the above, it is evident that the PSC’s contention about its inability to act on the C-BRTA CEO appointment due to the specified section is unfounded. Section 196(4)(f) does not erect a barrier preventing the PSC from addressing concerns related to executive appointments, and it is within the commission’s mandate to investigate and advise on matters affecting public administration practices, including CEO appointments. Consequently, the PSC is called upon to reconsider its stance and fulfill its broader responsibility of ensuring the integrity and adherence to procedures in the Public Service, even in matters related to executive leadership appointments.
The PSC furthermore in an attempt at its constitutional mandate contends: “Whilst the Constitution grants the PSC the power to initiate an investigation on its own accord, the mandate of the PSC is currently limited to the Public Service and does not as yet extend to Public entities. Section 8 (a) of the Public Service Act, 1994, stipulates that the PSC may investigate compliance with this Act whilst section 9 of the Public Service Commission Act, 1997, determines that the PSC may inspect departments and has access to such official document, or may obtain information from the heads of the relevant departments, as may be necessary. Section 10 (1) of the Public Service Commission Act, 1997, stipulates that “The Commission may conduct an inquiry into any matter in respect of which it is authorized by the Constitution or the Public Service Act to perform any function.”
The Constitution of a nation serves as the supreme law and provides the foundation for the functioning of its various institutions. In the context of South Africa, the need for the Public Service Commission (PSC) to initiate investigations is not only justified but is imperative for the overall health of the public service ecosystem. The Constitution thus grants the PSC specific powers and responsibilities, and a proactive approach to investigations aligns with the constitutional spirit of accountability, transparency, and good governance.
Empowerment Through Constitutional Authority
The Constitution of South Africa is the highest law and endows the PSC with the power to initiate investigations. Section 196(4)(f) of the Constitution explicitly authorizes the PSC to “investigate and evaluate the application of personnel and public administration practices.” This constitutional provision is a clear empowerment mechanism for the PSC to delve into matters concerning personnel practices, including CEO appointments.
Extended Mandate to Public Entities
The argument that the PSC’s mandate is limited to the Public Service and does not extend to public entities can be contested. The Constitution is a dynamic document, and its interpretation should evolve to address contemporary challenges. The principles of good governance and accountability are not confined to the Public Service alone but are equally applicable to public entities. The PSC, as the vanguard of the state, can interpret its mandate expansively to include investigations into matters affecting public entities.
Statutory Support
Sections 8(a) and 10(1) of the Public Service Act, 1994, and the Public Service Commission Act, 1997, respectively, bolster the PSC’s authority to investigate compliance and conduct inquiries. While these sections are integral to defining the scope of the PSC’s actions, they should be interpreted in harmony with the constitutional mandate. The Constitution remains the paramount source of authority, and any statutory limitations should be viewed as complementary rather than restrictive.
Constitutional Flexibility
The Constitution is a living document that provides a flexible framework for addressing the changing needs of society. Section 10(1) of the Public Service Commission Act, 1997, explicitly empowers the PSC to conduct inquiries into any matter authorized by the Constitution. This provision exemplifies the constitutional flexibility that allows the PSC to adapt and respond to emerging issues, even if they extend beyond the strict delineation of the Public Service.
Promoting Good Governance
The proactive initiation of investigations by the PSC aligns with the constitutional objectives of promoting good governance, accountability, and transparency. By exercising its authority to investigate, the PSC contributes to upholding the principles enshrined in the Constitution, fostering public trust, and ensuring the effective functioning of the state machinery.
Perhaps in summary on this aspect, the Constitution not only empowers but mandates the Public Service Commission to be a proactive leader in safeguarding the integrity of the public service and its entities. The PSC’s authority is not rigidly confined but is imbued with the flexibility to interpret and apply its powers in a manner that ensures the highest standards of governance in the interest of the South African public.
The PSC Media Statement asserts: The Public Protector is the correct constitutional body to deal with such[the challenges regarding the appointment of the C-BRTA CEO] a matter.
While the PSC disowns responsibility on a technicality of law, we have shown that the Public Protector wrote to the PSC about this matter. We can also confirm that the Public Protector referred the complainants to the PSC as the correct and best-suited institution to engage since the appointment of the CEO is the responsibility of the Minister of Transport.
I herewith refer to the Public Protector’s letter to the complainants: “In this case, a complaint has been reported to the Public Service Commission for further investigation, and the investigation by the PPSA will lead to duplication of efforts and resources. Therefore, the Public Protector advises you to refer the complaint to PSC-Deputy Director-General: Integrity and Anti-Corruption as the appropriate body for assistance.” (Exhibit F)
The C-BRTA is listed in Schedule 3 of the Public Finance Management Act, 1999 (PFMA), as a National Public Entity and as such falls outside the scope of the Public Service Act. In addition, Rule 4 (1) (d) of the PSC Rules on Conducting Investigations stipulates that the PSC will not investigate matters involving public entities as listed in schedules 2 and 3 of the PFMA.
The query regarding the Public Service Commission’s (PSC) apparent compliance rather than proactiveness in extending its mandate to encompass public entities is both salient and relevant. As a critical entity safeguarding the principles of good governance, transparency, and accountability, it is imperative to scrutinize the PSC’s efforts in proactively embracing a broader scope that includes public entities within its purview. This inquiry seeks to elucidate what concrete actions the PSC has undertaken hitherto in manifesting proactive leadership in this regard.
Firstly, the constitutionally defined mandate of the PSC primarily pertains to the oversight of the Public Service. However, the dynamic nature of governance demands a responsive and forward-thinking approach. Consequently, one may inquire into what initiatives or proposals the PSC has set forth to advocate for an expansion of its mandate to include public entities, recognizing the interconnectedness of these entities with the broader public service ecosystem.
Secondly, an examination of the PSC’s strategic endeavours toward proactively shaping the landscape of good governance in public entities is warranted. Has the PSC taken affirmative steps to engage with legislative bodies, executive authorities, or relevant stakeholders to foster a dialogue on the necessity of extending its jurisdiction? Proactivity, in this context, would involve the PSC championing a paradigm shift in its operational framework to meet the evolving challenges posed by an expansive public service environment.
Moreover, what initiatives have the PSC spearheaded to educate and mobilize public entities on the advantages of aligning with its oversight? Proactivity transcends mere compliance, demanding proactive dissemination of information, advocacy for legislative amendments, and facilitation of an environment wherein public entities willingly subject themselves to the PSC’s scrutiny for the overarching benefit of the South African public.
A comprehensive response would not only address these questions but also illuminate the strategic vision and concrete actions undertaken by the PSC to embody proactive leadership in extending its mandate to public entities. Such transparency is vital for engendering public trust, demonstrating the PSC’s commitment to the principles it upholds, and fortifying its role as a vanguard of good governance in the South African context.
Thirdly, as explicitly referenced in my article, the matter concerning the Cross-Border Road Transport Agency (C-BRTA) and its Chief Executive Officer (CEO) underwent parliamentary scrutiny at the hands of one of the official opposition parties, the EFF. In 2021, the EFF posed a series of meticulously crafted and clarity-seeking questions to Minister Mbalula, then the custodian of the Transport portfolio. Minister Mbalula duly responded to these inquiries. In light of the Public Service Commission’s (PSC) claim of non-jurisdiction and lack of knowledge regarding this subject matter, it is imperative to remind the PSC that Parliament, the Minister of Transport, and the Department all fall under the purview of the Public Service Commission.
In the fourth instance, a crucial inquiry arises: Has the PSC’s cadre of staff or officials ever conducted an investigation into the aforementioned complaints, and is there a corresponding case number? A matter of record now reveals that in two distinct responses to my article—first in the comment on the blog, by Zodwa Mtsweni and subsequently in the official media statement issued on March 4, 2024—the PSC categorically denied undertaking any investigation on the matters referred to it by certain individuals associated with C-BRTA.
The author, as articulated in the initial article and reiterated in this response to the PSC Media Statement, unequivocally affirms that the Public Service Commission (PSC) has indeed assigned a case number for its inquiry into the aforementioned matter. Therefore, the PSC’s assertion of non-involvement and absence of investigation in this matter is unsubstantiated and lacks veracity. Supporting this assertion, a compilation of electronic correspondences is proffered, attesting to essential communications that delineate the progression of the investigation. It is posited that a minimum of three PSC officials, occupying varying echelons of seniority, including two designated case officers and the head of the pertinent division, are cognizant of this ongoing inquiry. The designated case number is herewith presented as Exhibit C, accompanied by an assemblage of pertinent emails designated as Exhibit 4. This comprehensive evidentiary package serves to underscore the questionable nature of the PSC’s claims regarding its purported lack of information and non-involvement in the investigative process.
In summation, this response to the Public Service Commission’s (PSC) media statement, sent to all media houses dated March 4, 2024, exposes its notable obfuscation, lays bare its categorical assertions as lacking substance, and a conspicuous lack of proactiveness on matters involving public entities, in this regard the Ministerial appointment of the CEO, Lwazi Mboyi. The PSC’s attempt at exoneration appears futile as its fingerprints are unmistakably imprinted on the intricacies of the Chief Executive Officer (CEO) appointment saga, despite its vehement claims to the contrary.
The Public Service Commission’s unequivocal lies, as laid bare by the array of exhibits meticulously cited in the rejoinder, pose a severe threat to good governance, eroding public trust and integrity in the oversight mechanisms of vital state institutions. The deliberate deception, documented in these exhibits, raises profound concerns about the PSC’s commitment to transparency and accountability, undermining the very foundations of effective public administration.
The PSC’s failure to address the critical question surrounding its officials’ meeting with Mr. Lwazi Mboyi, the CEO of the Cross-Border Road Transport Agency (C-BRTA), further underscores its questionable transparency. The selective engagement with implicated parties and the absence of collaboration with key stakeholders in the course of its inquiries cast a shadow over the PSC’s avowed commitment to functioning without fear, favour, or prejudice.
Furthermore, the PSC’s reluctance to acknowledge the need for an expanded mandate, particularly concerning public entities, exposes a lack of proactiveness. The constitutional flexibility granted to the PSC allows for interpretation and evolution in response to contemporary challenges. Yet, the PSC remains reticent on the imperative to rethink its jurisdiction, thereby hindering its potential as a steward for good governance in the broader public service ecosystem.
Through this right of reply, the PSC’s claims have been effectively debunked, leaving South Africa facing a crisis of questions. If the PSC can be deemed unreliable and sophisticated in its responses, what else might it be concealing from the public? This crisis demands a thorough re-evaluation of the PSC’s credibility and underscores the imperative for a recalibration of its role in upholding the principles of transparency, accountability, and good governance within the South African public service. The PSC, as a sentinel of the state, must navigate beyond obfuscation, embrace transparency, and uphold its mandate with unwavering integrity to restore public trust and confidence.
