The Department of Communications' (DOC's) hands are tied and it cannot take any action against an Independent Communications Authority of SA (CASA) councillor, who was appointed last year, despite a charge of fraud hanging over his head.
Rubben Mohlaloga - who was chosen to fill one of three seats - was charged with defrauding the Land Bank of R6 million. He was expected to take up his role as one of nine ICASA councillors early this year.
However, while the other two councillors are in office, he is not on active duty and is apparently still working at the department, leaving ICASA one councillor short of the legally-mandated nine members.
Meanwhile, the Portfolio Committee on Communications has been left with egg on its face after condoning Mohlaloga's appointment after he was charged, and now has its hands tied as there is nothing it can legally do to remove him.
A memo prepared by the Constitutional and Legal Services Office for the Parliamentary Portfolio Committee on Communications, discussed at a recent meeting, provides the opinion that no action can be taken against Mohlaloga, as he is presumed innocent.
According to Mohlaloga's LinkedIn profile, he has been the department's GM for policy development since July 2010. He was also previously chairman of the portfolio committee for agriculture and land affairs.
Wait and see
Once councillors have been appointed, they can only be removed by the communications minister, currently Dina Pule, on grounds of misconduct, and can only justifiably be removed once they have been convicted, for example, for fraud, states the memo.
However, Mohlaloga's charge has yet to go through the court process. "Fraud allegations are yet to be proven and the case is still pending. Only a court of law can determine whether Mohlaloga is guilty of fraud. Until such a finding has been made, he is presumed to be innocent," states the legal opinion.
Mohlaloga was reportedly arrested in October - a month after short-listed candidates were interviewed for the post and a month before he was appointed. He was one of three - Nomvuyiso Batyi and Katharina Pillay being the others - approved by the National Assembly to fill posts that would be vacated.
The memo notes the committee can request Pule to keep it up to date to determine what steps, if any, are needed after the court process has run its course.
Untenable
During a recent committee meeting, Democratic Alliance shadow minister of communications Marian Shinn expressed disappointment that no action could be taken against Mohlaloga.
The DOC has said it was unaware Mohlaloga had the charge hanging over his head at the time he was short-listed. He had also not disclosed the matter to the department, despite holding a senior position.
Portfolio committee chairman Eric Kholwane has said Mohlaloga did not raise the matter during the interview, or alert the committee after his arrest.
Shinn says the committee should not be seen to condone the appointment of a person who was facing such serious charges. She adds it is an untenable position and needs to find a way to deal with the situation. It was accepted that there were no legal means to remove Mohlaloga from the post.
Mohlaloga, who Shinn understands is still at the department, should be encouraged to stand down, she says. The appointment of a person accused of fraud caused significant embarrassment to ICASA and Parliament, notes Shinn.
Congress of the People member of Parliament Juli Kilian points out that the legal process is lengthy and Mohlaloga could appeal if found guilty. She says the current situation is untenable, and alternative courses of action need to be explored and the matter has a negative effect on the committee's credibility.
Kilian says the committee had asked all the candidates if there was any matter that could compromise their appointment, and says it will be blamed for the fiasco and must be seen to have taken action to prevent a future recurrence. She says it is necessary for the committee to work out if there are weaknesses in its own processes.
ANC member of Parliament Regina Lesoma says all parties are concerned over the loss of credibility, but that the committee cannot prejudge Mohlaloga.
However, Kholwane says the charges were only laid after Mohlaloga's appointment and the committee cannot be held accountable if accusations were made after the Parliamentary process was completed.
Shinn warns the matter will not be allowed to rest until it is resolved.
No clarity
ICASA spokesman Paseka Maleka says Mohlaloga is not yet a councillor, and referred ITWeb to the department to explain why he had not taken up his post. The department did not respond to a request for comment.
Maleka says ICASA is still waiting for clarity from the DOC as to Mohlaloga, but notes the council can still make decisions, although the situation is not ideal as there should be nine councillors in accordance with the law.
Mohlaloga is currently not being paid by ICASA. ITWeb was unable to find contact details for Mohlaloga, and the National Prosecuting Authority was not available to indicate where the matter was in the legal process.
Share