/ 19 October 2021

Mkhwebane will not oppose Mabuyane’s application to interdict remedial action

Public Protector Busisiwe Mkhwebane Appears In Court On A Perjury Charge
Public Protector Busisiwe Mkhwebane said she would abide by the court’s decision. (Gallo Images/Lefty Shivambu)

Public protector Busisiwe Mkhwebane has said she will not oppose the application by Eastern Cape Premier Oscar Mabuyane to take her recent report, which implicated him in graft, on judicial review. 

In papers filed on Tuesday with the high court in Bhisho, Mkhwebane said she would abide by the court’s decision. 

Mkhwebane’s spokesperson, Oupa Segalwe, said Mabuyane’s court action was two-pronged. In part A, Mabuyane seeks an interim order suspending the implementation of the remedial action taken by the public protector pending the finalisation of the relief sought in part B, in which he wants the public protector’s report reviewed and set aside.

“The office of the public protector is not opposing pPart A because the office will not suffer any prejudice if the relief sought is granted. In any event, it is the public protector who always encourages those who take the office’s reports on judicial review to also obtain interim interdicts to stay the implementation of the remedial action because the launch of review proceedings on its own does not suspend the remedial action. The office will oppose part B of the application,” he said.

This comes after a two-week battle between Mkhwebane and Mabuyane after the release of her report, which found that he and Eastern Cape head of public works Babalo Madikizela criminally benefitted from a portion of the R1.1-million of Mbizana municipal funds meant for the memorial service of Winnie Madikizela-Mandela. 

After finding a raft of criminal intent by Mabuyane and his provincial government colleagues, including contraventions of the Prevention and Combating of Corrupt Activities Act, the public protector’s office said it had referred the matter to the Directorate for Priority Crime Investigation (the Hawks) for criminal investigation.

Mabuyane, who was the provincial head of economic development at the time, Weziwe Tikana, the environmental affairs and tourism, transport, safety MEC and liaison member of the executive council, as well Madikizela, who was the former human settlements MEC, “improperly benefited from the misuse of public funds”, according to Mkhwebane.

Mabuyane denied this, alleging that the public protector’s report was politically driven to undermine him. With the backing of the ANC in the province, where he is also the ruling party’s chairperson, Mabuyane on Friday filed an application to interdict the report and set aside its remedial action. 

In his application he argued that since its publication, the ANC in the Eastern Cape had been inundated with calls for him to be forced to step aside from his position until he clears his name. 

“All this because of findings, suggestions and innuendo carried in the Public Protector’s report and remedial action. The Public Protector’s remedial action requires the speaker of the Eastern Cape provincial legislature to place the Public Protector’s report before the Eastern Cape legislature. It is reasonable to conclude that these calls will be made even at that forum. In fact, the tabling of the Public Protector’s report and remedial action before the Eastern Cape provincial legislature and consideration they add is bound to yield adverse consequences for the applicant,” Mabuyane said.

The report painted him as being dishonest, corrupt and untrustworthy, he added.

Mabuyane argued that he was not aware of any agreements between Madikizela and Lonwabo Bam, of Mthombeni Projects Construction, on a tender related to Madikizela-Mandela’s memorial service, adding that he received a personal loan from Madikizela to renovate his home.

The report found that Madikizela instructed Bam to submit an invoice to the Mbizana municipality for R1.1-million, which later changed hands and landed in his account and that of Mabuyane.

Mabuyane also argues that evidence from Bam does not indicate that he knew the municipality had paid money to him. 

Bam, in his affidavit to Mkhwebane’s office, alleged that on 24 July 2018, he had received instruction from Madikizela, also ANC treasurer, to submit an invoice to the Mbizana local municipality for R1.1-million. Mabuyane said there was no reference to his alleged involvement.

In his affidavit, Bam alleged that Mabuyane was aware that the money was paid to him with no intention of providing services. 

“The public protector accepts that I told her that I had no involvement in the communication with Mr Bam concerning any payment from the municipality to his company. She does point to any facts to justify any inference that I spoke to Madikizela on this issue. The only evidence that she relies on for the conclusion of my knowledge is the claim that my wife Ms Siyasanga appears to have had knowledge or reasonably ought to have known that the money deposited to Allen Morran Designs came from Mthombeni Projects of which Mr Bam is the owner since she is the one who confirmed to Morran that R450 000 was to be used for the renovation of the house,” Mabuyane said, calling this a  speculative conclusion and that “quite apart from the public protector’s baseless conclusion it is clear that she overlooked the actual evidence in front of her”.

The M&G recently reported that the Hawks were waiting on the National Prosecuting Authority (NPA) to decide whether to prosecute. Insiders said the Hawks were frustrated with the NPA for dragging its feet on charging Mabuyane. They said the NPA wanted to ensure that it had a watertight case.

The Hawks have confirmed that they believe Mabuyane should face criminal prosecution for alleged fraud and corruption after the elite unit concluded its almost two-year graft investigation.

Hawks spokesperson Colonel Katlego Mogale told the M&G on Thursday that the ball was effectively in the NPA’s court: “The investigation has concluded and we are waiting for the NPA to give us a decision on whether they will prosecute Mabuyane.” 

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. 

“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 say those expected to be charged include Madikizela, Bam and Mbizana municipal manager Luvuyo Mahlaka. 

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

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.