/ 26 October 2021

Mkhwebane to forge ahead with blocking Mabuyane’s judicial review

Public protector (PP) Busisiwe Mkhwebane. (Lindile Mbontsi/Foto24/Gallo Images/Getty Images)

Although the public protector’s office welcomed the halting of remedial action against Eastern Cape Premier Oscar Mabuyane, it will still continue to oppose the review of the damning corruption findings against him.

Oupa Segalwe, spokesperson for the public protector’s office, said on Tuesday that the office will not suffer any prejudice after the Eastern Cape high court in Bhisho granted Mabuyane and his public works MEC, Babalo Madikizela, an interim order halting the implementation of the remedial action.

In her report released on 8 October, public protector Busisiwe Mkhwebane recommended that the Directorate for Priority Crime Investigation (the Hawks) institute a criminal investigation against Mabuyane and Madikizela for allegedly using portions of the R3.3-million the province had set aside for the commemoration of late struggle icon Winnie Madikizela-Mandela’s life for personal gain. 

Madikizela-Mandela passed away in April 2018. According to the public protector, Mabuyane used R450 000 to renovate his home and Madikizela, through his wife, Zona Zethu Siyathandaza Madikizela, received R350 000. Of the money, R280 000 made its way to the ANC in the Eastern Cape.

The high court on Tuesday acknowledged that Mkhwebane’s remedial actions were binding until they were set aside during a judicial review, with Judge Rosaan Krüger citing the so-called Nkandla judgment that all public protector reports were enforceable until overturned by a court. 

Krüger said both Madikizela and Mabuyane would suffer “discernible, irreparable harm and prejudice” should Mkhwebane’s actions be implemented pending the judicial review of her report by both politicians. 

“As a result of the remedial action of the public protector, the [Hawks] will investigate the allegations against the applicants and they may be called to appear before the ethics committee of the provincial legislature and censured by their political party,” the judge said. 

“These actions may have negative consequences for their political careers and personal reputation. Their fears as to the harm that they may suffer should the interim relief not be granted are not far-fetched but based in fact.” 

However, the Mail & Guardian reported two weeks ago that the Hawks had confirmed that its investigation into Mabuyane and Madikizela was finalised, and that the National Prosecuting Authority was refusing to prosecute the case.

Krüger, meanwhile, added that Mkhwebane’s office would not suffer harm should the temporary suspension of her remedial action be granted. 

“Her office continues its work of investigation and reporting undisturbed by the suspension of the remedial action in this matter. The applicants’ prior requests to the public protector to stay the implementation of the remedial action were rejected.

“It is, thus, evident that it is only a court order of the nature requested that could suspend the implementation of the remedial action pending final review. I am satisfied that  the applicants do not have a suitable alternative remedy,” Krüger said.

Segalwe said the public protector had not opposed this application because, as the judge had ruled, Mkhwebane’s office would 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 their own do not suspend the remedial action. The office has already filed notices to abide by the court decision in respect of part A [interdict of remedial action] of the two applications. 

“The office will, however, oppose part B of the applications [to overturn the full report],” Segalwe told the M&G.