AfriForum’s Private Prosecution Unit served a mandamus application on 20 November 2020 on the Premier of the North West, the Department of Arts, Culture and Traditional Affairs, the Mmabana Foundation and the President of South Africa on behalf of Phatolo Kau, former Head of Human Resources at the Mmabana Arts, Culture and Sports Foundation. The application is aimed at compelling the Premier to decide on applicable action after a forensic investigation. The parties have 20 days to respond whether they oppose the application.
The application comes after Kau informed the premier of North West already in October 2014 of irregularities at the Foundation, after which the Premier ordered a forensic investigation. The private investigations company Nexus Forensic Services was appointed to undertake the investigation, which was completed in August 2016 according to this company. It came to Kau’s attention that the investigation report recommended among others that the Directorate for Priority Crime Investigation (the Hawks) should conduct a subsequent criminal investigation into the irregularities.
Kau approached AfriForum’s Private Prosecution Unit in 2019 after the Premier failed to reply to Kau’s letters to obtain access to the report in terms of the Promotion of Access to Information Act 2 of 2000. The Unit also directed letters to the Premier, as well as to President Cyril Ramaphosa in his authority as head of the executive authority of South Africa.
According to Wico Swanepoel, Prosecutor at AfriForum’s Private Prosecution Unit, this is a simple case that could have been resolved easily by the Premier. “The mandamus application is the last resort because none of the respondents provided the report. The application aims to compel the Premier to make a final decision on the implementation of the recommendations in the report, especially the Hawks’ subsequent investigation and that the Department of Arts, Culture and Traditional Affairs should inform Kau of the actions – if any – to be taken against perpetrators who are implicated in the report.”
According to Swanepoel, whistle-blowers remain one of the most effective ways to identify and expose corruption. “These people must be supported and protected at all costs to ensure that others are also willing to come forward to expose corruption. The President’s statements that corruption must be eradicated seem to be nothing but lip service, however, because although he knew about the irregularities in this case, he failed to act. Even after the investigation report had been compiled, the Auditor-General found that the Foundation had made payments in excess of R100 million without an approved budget. This subsequent waste of taxpayers’ money could have been prevented if the respondents had acted timeously,” Swanepoel says.