Lumko Mtimde, the suspended CEO of government’s universal service agency Usaasa, must be reinstated by next week, public protector Busisiwe Mkhwebane has ruled in a report that has condemned the conduct of the agency’s board. He must be reinstated by no later than 4 September.

At the same time, the public protector wants the individual members of the Usaasa board, led by chairman Mawethu Cawe, to pay personally for the costs associated with a disciplinary process against Mtimde.

Mtimde was suspended by the board in March, a move he described as “retaliation” by Cawe for reporting what he, Mtimde, described as the board’s “unlawful actions” to national treasury, the auditor-general and the minister of telecommunications & postal services.

Mtimde accused the board of the long-troubled agency, which was established to improve ICT services in underserviced communities, of acting unlawfully.

Mkhwebane has now found that the board’s decision to proceed with a disciplinary inquiry, despite being notified of the existence of a protected disclosure to national treasury, the auditor-general and the telecoms minister, violated the law.

“The complainant was subjected to occupational detriment by the Usaasa board on account of having made a protected disclosure,” her report said. “The Protected Disclosures Act provides for the protection of an employee from being subjected to an occupational detriment on account of having made a protected disclosure.”

By proceeding the disciplinary action, the Usaasa board “not only rendered the office of the public protector ineffective, but also the objectives of the Protected Disclosures Act, as the public protector was unable to ensure proper protection of the employee from being subjected to occupational detriment”. The board should have put the disciplinary process on hold pending the outcome of her investigation, she said.

“The conduct of the Usaasa board, especially that of the chairperson, Mr Cawe, constitutes improper conduct as envisaged in section 182(1) of the constitution and maladministration and undue delay as envisaged in section 6(5)(a) of the Public Protector Act.”

‘Decisive and appropriate action’

Mkhwebane has directed telecoms minister Siyabonga Cwele to take “decisive and appropriate action against all members of the Usaasa board” for violation of the Protected Disclosures Act and their “defiance” of the protector’s office — “in breach” of the constitution.

She said, too, that any legal costs incurred by Usaasa after it was made aware of the protected disclosure lodged with the public protector, as well as costs incurred for the disciplinary inquiry, be recovered from the individual members of the board in their personal capacities.

She has directed Cwele to consider seeking a declaration that the entire Usaasa board be declared delinquent directors for the “irregular, unnecessary, reckless and unconscionable expenditure of public funds allocated to Usaasa on legal costs”.

The minister should “disregard the recommendation of the Usaasa board in connection with the outcome of the impugned disciplinary inquiry held against the CEO … until the finalisation of my investigation into the complaints referred to in this report for investigation”.

The board must only not reinstate Mtimde by 4 September, but must also apologise to him for the “irrational and inappropriate manner in which it handled his complaints”.

Both Cwele and Mtimde must report back to Mkhwebane within 30 days of the report’s publication date of 28 August on progress made with the remedial action.

In an e-mail to TechCentral, Mtimde said: “I derive no joy in any of this. It obviously negatively affected me and my family. But, importantly, it feeds into the troubling narrative about incompetent people getting appointed to run state-owned entities whilst also creating unfair impressions about my competence and integrity.”