Durban — Is the eThekwini Municipality’s investigation arm, the City Integrity & Investigations Unit (CIIU) above the law?
This is suggested by the City’s response to the Daily News which had enquired about how the unit conducted its investigation into the City’s deputy manager for Human Resources Kim Makhathini’s qualifications.
The paper had asked the City whether the unit had a mandate and the powers to investigate Makhathini since, according to the Municipal Systems Act (MSA), she falls under Section 56 which in terms of the act could not be investigated by bodies such as the CIIU but rather by an independent body which must be appointed by the council.
In terms of the MSA 32 of 2000, if a senior manager has been accused of misconduct his/her matter should be brought to council which, if it was satisfied that the allegations could be real, may appoint an independent investigator within seven days upon receipts of the report about misconduct allegations.
The act further stipulates that the mayor or city manager must take the matter to the council and if the next council meeting date will be after seven days, the mayor may ask the speaker to convene a special meeting to deal with the matter.
In its response, the City said the council has conferred authority to the CIIU, adding that Section 67 of the MSA permitted the City to do this.
Section 67 of the MSA states: (1) A municipality, in accordance with the Employment Equity Act. 1998, must develop and adopt appropriate systems and procedures to ensure fair, efficient, effective and transparent personnel administration, including ... the investigation of allegations of misconduct and complaints against staff.
Furthermore, the City said the CIIU was not precluded from investigating any employee of the municipality, including the accounting officer. It added that the Fraud Prevention Policy clearly outlines the mandate of the CIIU and the investigation process and this policy is applicable to all municipal officials, including senior managers and the accounting officer.
Further, the City said this policy also clearly states that the CIIU has unrestricted access when conducting such investigations. Paragraph 6.6 of the Fraud Prevention Policy clearly outlines the process to be followed by the CIIU when investigating allegations of fraud, corruption or any other misconduct reported.
Although the City’s response appears to be legally sound, what is interesting was the paper has discovered that it was not the same explanation the City’s legal unit had given to Makhathini. The paper has it on good authority that the City told Makhathini that council would still have to appoint an independent investigator to look into the allegations of misconduct against her.
As a result of this pending process she could not be given a CIIU report. This response begs the question of the status of the report which was raised by the paper and that the City has not yet responded to.
It also raises the question of what was the purpose of the investigation if a new body will be appointed to investigate the same allegations? What was more interesting was that the City’s legal unit still refers to the findings of the report as allegations. The City’s response to Makhathini also clearly indicated that the CIIU was not regarded as an independent body. The understanding is that CIIU is an internal investigating arm.
It must also be noted that the ANC National Working Committee grilled the City on this issue of fake qualification but Mayor Mxolisi Kaunda dismissed the allegations as not true.
Makhathini said she was concerned that she had not been shown the report, yet the City had confirmed its existence to the media, adding that she believed her rights were being violated. The City also failed to explain how the Hawks got involved in the matter before the finalisation of the report.
The Hawks investigator had approached Makhathini at her office and asked about the allegations in November last year, but the CIIU report was only completed in March this year. It was not clear why the Hawks abandoned the investigation but it was believed it was because Damelin had refused to make an affidavit. If that was true, it raises the question of how the criminal case that was said to be open against Makhathini would proceed without an affidavit, which would compel Damelin to testify in court.
It also raises questions about whether the CIIU’s report was a violation of the Protection of Personal Information Act (Popia). In its investigation, the unit had gone to Damelin for verification of Makhathini’s diploma which she obtained from the private institution in 1996 without consent from her as the act required.
The City defended this move and said the CIIU had relied on Section 26(b)(i)(ii) and Section 27(1)(b) of the Popia. In addition, it said the CIIU had unrestricted access to all municipal records, meaning it did not require Makhathini’s consent. This sounds abnormal since such an investigation requires that a criminal case has been opened which has not yet been opened against Makhathini.
Also not clear is who opened the criminal case against Makhathini and, according to the legal unit, the council will still have to appoint an investigator to look into the allegations against her. Also interesting was that the CIIU report has never been tabled anywhere or acted upon since March.
The onus is on Kaunda as the political head of the administration to clarify the confusion around this report.
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