Defiant Defence and Military Veterans’ Minister Nosiviwe Mapisa-Nqakula and the SA National Defence Force (SANDF) have stuck to their guns and refused to implement Public Protector Busisiwe Mkhwebane’s remedial action.

In turn, Mkhwebane is now tiptoeing around her powers to lay a charge of contempt against the minister and the military.

Mkhwebane warned Mapisa-Nqakula that she would haul her into court to enforce the report made last year in July but has since climbed down, saying this week that she did not have the money to do so.

“Due to financial constraints, the Public Protector cannot afford to press ahead with contempt proceedings,” said Mkhwebane.

Instead, she asked the minister again to comply, “failing which she will report her to the National Assembly”.

The case involved the SANDF’s non-compliance with the 2012 recommendation of the military ombudsman to reinstate an unlawfully dismissed air force member, Lieutenant Colonel Babalo Mvithi, who then turned to Mkhwebane for protection.

He has still not been reinstated.

Mkhwebane denied failing in her duties to hold Mapisa-Nqakula accountable, adding that she had done all the law required of her.

She denied removing her deputy advocate Kevin Malunga from the case, saying Malunga was in charge of the mediation process and the investigation, but she had to sign off the final report.

Mapisa-Nqakula told City Press she ignored the remedial action because the report had been taken on judicial review.

SANDF legal advice director advocate Ramcharan Thameshni said this week that “the department has brought a review application on the remedial actions and the matter is sub judice”.

“The department has issued and filed the relevant review court papers and the matter is proceeding accordingly.”

However, the Constitutional Court was clear after the landmark case involving the Economic Freedom Fighters and the speaker of the National Assembly that remedial action could be disregarded “only after a court of law had set it aside”. This means the intention to take a Public Protector report on review does not discount the obligation to comply.

Mkhwebane agreed. “The Public Protector’s understanding of the judgment is that for as long as there is no court order setting the remedial action aside, the report must be implemented.”

Documents City Press obtained show that Mkhwebane issued her report in July last year, instructing that Mvithi be reinstated to his original post.

Two months later Mkhwebane wrote to Mapisa-Nqakula saying that “failure to comply with the remedial action of the Public Protector will lead to contempt of the Public Protector Act” and she “reserves her right to proceed with contempt proceedings”.

In the letter Mkhwebane said SANDF head General Solly Shoke had 30 days from the date of the report to implement the remedial action. And Mapisa-Nqakula had 60 days to institute disciplinary steps against the SANDF officials involved in subverting the military ombudsman’s recommendations.

But neither Mapisa-Nqakula nor Shoke have complied.

Mvithi told City Press that Shoke issued an instruction that he should be reinstated as per the military ombudsman report but his order was subverted by his subordinates.

“I do not think that General Shoke is fully aware of what is happening here but every time I tried to seek an audience with him I have been frustrated,” he said.

Maluga’s mediation efforts failed, resulting in Mkhwebane issuing her report last July.

According to her report, the SANDF said Mvithi was ordered in 2011 to transfer to the air force base in Hoedspruit, Limpopo, but he did not obey despite “numerous appeals and instructions”. On February 10 2012 he was declared absent without permission and fired.

But military ombudsman Lieutenant General Themba Matanzima found in Mvithi’s favour, saying he was “not consulted before a unilateral decision” to transfer him was taken. “He was charged in 2009 for 2008 military disciplinary code offences as well as in 2010 for a serious offence like mutiny but, to date, those charges have not yet been adjudicated in a military court,” Matanzima said.

Mvithi was then “declared persona non-grata and denied access to the unit with his photo displayed at the reception”. His salary was also stopped.

Mvithi told Matanzima he was fired because he refused to agree to a decision by air force commander Brigadier General CA Masters to “change” the report of a fact-finding mission that revealed incidents of racism against black student pilots. Matanzima recommended that Shoke look into the allegations.