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NPA ‘refuses’ to prosecute Oscar Mabuyane

The National Prosecuting Authority (NPA) has “dragged its feet” in prosecuting Eastern Cape Premier Oscar Mabuyane due to his close proximity to President Cyril Ramaphosa. It has been five months since the Hawks handed over the docket to the authority. 

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The Directorate for Priority Crime Investigation (DPCI), popularly known as the Hawks, has confirmed that it believes Mabuyane should face criminal prosecution for alleged fraud and corruption after the elite unit concluded its almost two-year graft investigation into how he and Eastern Cape head of public works Babalo Madikizela allegedly benefited from R3.3-million in state funds made available for the commemoration of late struggle icon Winnie Madikizela-Mandela.

Hawks spokesperson Colonel Katlego Mogale told the Mail & Guardian on Thursday that the ball was effectively in the NPA’s court on whether to prosecute Mabuyane.

“The investigation has concluded and we are waiting for the NPA to give us a decision on whether they will prosecute Mabuyane,” Mogale said, without elaborating further. 

However, a source close to the probe said the NPA had been “dragging its feet” since August after the Hawks obtained a warning statement from Mabuyane. 

“The warning statement was taken in August and Mabuyane wanted the Hawks to provide him with additional information and the evidence that was collected during this investigation. But that is impossible because disclosures are only done in court by the prosecutor once the matter is enrolled,” said the source, who asked to remain anonymous.

“There is more than enough evidence to charge Mabuyane.”

Sources with inside knowledge of the case have told the M&G that those expected to be charged include Madikizela, business person Lonwabo Bam and Mbizana municipal manager Luvuyo Mahlaka. They say the NPA and the Hawks have been at loggerheads over the delay on the arrests. Insiders say the NPA in Gqeberha has delayed prosecution due to Mabuyane’s closeness to Ramaphosa.

Despite the Hawks confirming that the probe is complete and ready for prosecution, the Eastern Cape NPA disputed this. “We confirm that the matter is still under investigation by the Hawks through a prosecution guided investigation methodology. No further information will be released at this stage as the matter is still under investigation,” said Anelisa Ngcakani, spokesperson for the Eastern Cape NPA. 

One insider said Bam, who is expected to be a state witness, has been interviewed twice by the NPA in Gqeberha. The NPA has also gone back and forth with the Hawks, calling for additional information. 

The Hawks are said to have already indicated to the NPA that Bam’s case will fall under section 204 of the Criminal Procedure Act, commonly used by law enforcement when the state requires a person who may have been a party to a crime to testify against others. 

A Hawks insider from the Free State said the investigation was handled in that province after Bam requested that the directorate’s head, General Godfrey Lebeya, move it, fearing possible interference. Lebeya is said to have moved the case under the stewardship of the Free State provincial Hawks commander Brigadier Nico Gerber, investigated by the same Captain Calitz who investigated the asbestos case that saw the prosecution of suspended ANC secretary general Ace Magashule

Hawks head General Godfrey Lebeya moved the investigation to the Free State to avoid interference. (Photo by Gallo Images/Sunday Times/Alaister Russell)

This was confirmed in a Hawks statement to the M&G on Thursday, which rubbished claims by Mabuyane, contained in his interdict application, that the Free State investigators were probing him at the behest of Magashule, who with 15 co-accused face multiple charges of fraud, theft, corruption and money-laundering relating to a R255-million Free State contract for replacing asbestos roofs.

Mabuyane, in his court papers, contended that Magashule, who had been Free State provincial chairperson for about 25 years, and premier for almost nine years, used his influence to get the Hawks in that province to target him. 

“From time to time, the Hawks investigate cases across provincial borders. It has taken place in various instances such as the Durban Waste investigation, Nafiz Modack investigation, Eskom prepaid electricity fraud [and so on],” the Hawks said.

“From time to time, the national head will assign investigators from different provinces to probe cases that aren’t necessarily situated in their own provinces or even where their offices are based.”

Sources say an NPA advocate, one Van Zyl (first name not known), was charged with handling the case. But Van Zyl resigned from NPA, meaning the possible prosecution of the ANC leaders hit another brick wall. 

“Van Zyl wanted a watertight case so he kept asking for additional information which resulted in many delays. When he resigned, the case stalled yet again,” the source said. 

Mabuyane has gone to the high court in Bhisho to try to interdict the Hawks investigation, having reportedly panicked as the court case against him could see him lose control of the Eastern Cape. Those in his camp believe the case is being fuelled by his political detractors. 

In his affidavit, Mabuyane said the Hawks had indicated that their investigation related to a Jeep Cherokee purchased by Lisolomzi Sogayise, the executive director of Ikamva Consulting & SALP Holdings, and eventually bought by Mabuyane for his personal use. The Hawks also questioned renovations done on Mabuyane’s home in East London.  

“These are perplexing questions as there is no suggestion at all of any corruption, money laundering or fraud pertaining to the renovations at my house. To the knowledge of the DPCI, allegations have been peddled in the public against me but have been refuted fully. It is known by the DPCI that a loan agreement concluded between me and Mr Babalo Madikizela in our private capacities was fully discharged,” he argued.

“Bearing in mind that the DPCI knows the correct facts, the only inference can be that they are hoping to trap me into self-incrimination which itself is unconstitutional.”

Mabuyane questioned why the Hawks in the Free State, and not the unit’s Eastern Cape branch, where the alleged offences are said to have emanated from, were investigating him.

“I have been informed by a confidential source, whom I have no reason to disbelieve, that certain political elements within the ANC who are opposed to my leadership are behind the investigation and have tried to influence the DPCI,” he said.

“The second purpose of this application is to compel the DPCI to provide me with information that I reasonably need in order to answer certain questions that have been addressed to me. The DPCI appears to take the attitude that since I am not an accused person I am not entitled to such information. This is the wrong attitude. I have already been characterised by the DPCI as a suspect. Bearing in mind that I am a suspect presumably suspected of having committed crimes I’m entitled to know the basis of which it is suggested.”

Mabuyane says he created enemies in the ANC’s national executive committee when he and the Eastern Cape provincial executive committee (PEC) openly called for Magashule and others to step aside because they face charges. He argues that because he is an ally of Ramaphosa, Magashule is waging a counter-campaign against him. 

The Hawks have missed the deadline to submit responding affidavits to Mabuyane’s application in a matter that is set to be heard by the court on 19 October.

Public protector Busisiwe Mkhwebane has just released a report that says the Eastern Cape provincial government, working in concert with the Mbizana local municipality, allowed the Winnie Madikizela-Mandela memorial programme, a state-funded event, to be hijacked by private individuals and companies, including the Mbizana Local Taxi Association and Koo Construction, which provided transport services for the memorial programme following informal negotiations outside of supply-chain management processes. 

“Mr Mabuyane personally benefited R450 000 from the amount of R1.1-million which were certainly public funds that went into the Nedbank account of Allan Morran Design Architectural Services, which is a private company that carried out renovations at [Mabuyane’s] private house as set out in evidence,” the report reads.

“Mr Madikizela personally benefited R350 000 from the amount of R1.1-million which were certainly public funds that went into the FNB account of IPM Plant Hire CC, which is a private company owned by his wife, Ms Zona Zetu Siyazithanda Madikizela, as set out in evidence. The ANC benefited R280 000 from the amount of R1.1-million which were certainly public funds that went into its FNB fundraising account, as set out in evidence.”

The report has united ANC rivals Mabuyane and Madikizela, who were set to have a fierce contest when the province goes to its elective conference. According to insiders, they have called a truce that the provincial Eastern Cape conference should not be contested. 

Party insiders close to Madikizela and Mabuyane say the PEC, whose term ended in September, has also found Mkhwebane’s timing suspect, with the majority indicating that they would support the provincial chair should he be charged. 

Mabuyane in his affidavit notes that should he be charged, he faces the risk of being subjected to the ANC’s step-aside rule. 

“The DPCI is aware of this. Therefore its decision to persist with a completely baseless case against me knowing that a judge would require me to step aside is a flagrant abuse of power and engineered to secure a political outcome. This abuse should not be tolerated by the court and should be brought to an end with immediate effect,” he said.

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Khaya Koko
Khaya Koko is a journalist with a penchant for reading through legal documents braving the ravages of cold court benches to expose the crooked. He writes about social justice and human-interest stories. Most importantly, he is a card-carrying member of the Mighty Orlando Pirates.
Lizeka Tandwa
Lizeka Tandwa
Lizeka Tandwa is a political journalist with a keen interest in local government.

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