Africa-Press – South-Africa. Eastern Cape Premier Oscar Mabuyane vowed to take action against suspended Public Protector Busisiwe Mkhwebane for dragging his name through the mud.
This after the Eastern Cape High Court set aside Busisiwe Mkhwebane’s report found against Mabuyane and former public works MEC Babalo Madikizela.
Mkhwebane investigated allegations involving the misappropriation of funds from the former Mbizana Local Municipality – now known as the Winnie Madikizela-Mandela Local Municipality – after it allegedly paid R1.1 million to a businessperson, Lonwabo Bam, and his company, Mthombeni Projects, for no services rendered.
Responding to the scathing remarks by Judge Jannie Eksteen, who described Mkhwebane’s unsubstantiated findings against Mabuyane as curious, the premier said Mkhwebane had a political agenda to tarnish his name.
“It was always clear that Mkhwebane was deliberately acting to serve a particular interest and those who form part of her interest went around the country trying to tarnish my name,” Mabuyane said.
“We are going to take this forward, my lawyers are studying the judgment to decide on a way forward.”
Mabuyane and Madikizela approached the Eastern Cape High Court in October 2021, in a bid to interdict the implementation of Mkhwebane’s remedial action after she released the report which found they had unduly benefitted from the R1.1 million paid to the municipality.
Bam received the money – and was then instructed to pay R350 000 to his company account, R450 000 to Allan Morran, who was upgrading Mabuyane’s security wall, and R280 000 to the ANC in the Eastern Cape.
Bam later reported the matter to the police, and it was also what he revealed during the Public Protector investigation.
Mkhwebane’s report then recommended that action be taken against Mabuyane and Madikizela, and that the Hawks conduct a criminal investigation.
Mabuyane, however, argued that Mkhwebane had ignored his submitted evidence, which pointed to a loan agreement between himself and Madikizela, and that he had no knowledge of the actual source of the money.
Madikizela said that, because he was not in government, the Public Protector had no investigative powers over him.
During the November hearing, Madikizela’s legal team raised an issue about there being two Public Protector reports on the matter, with different dates and different remedial actions.
In his ruling, Eksteen said Mkhwebane’s failure to explain herself on signing two different reports was disturbing, that it gave credence to the charge that she did not apply her mind to the content, and that her changing of factual findings on the second report without explanation was a sufficient reason for the report to be set aside.
Eksteen said:
“The purpose of this additional remedial measure is not immediately apparent, but clearly had a potential damaging effect on both Mabuyane and Madikizela in the face of imminent local government elections. The failure itself is fatal to the remedial action,” said Eksteen.
He said Mkhwebane’s rejection of Mabuyane’s evidence and her suspicion that the premier might be guilty of offences in terms of preventing and combating of corrupt activities was equally curious.
“She found support for the conclusion in the fact that the money had been transferred directly from Mthombeni Projects to the account of Mr Morran. She did not explain how this fact gave rise to her suspicion in the face of the explanation and evidence before her,” said Eksteen.
He also found it disturbing that Mkhwebane did not respond personally to numerous accusations attacking the integrity of her investigation.
“An explanation was undeniably called for and, as I have said, she was the only person who could respond to these accusations,” said Eksteen.
The Office of the Public Protector has been ordered to pay the legal fees of the applicants, including the cost of two legal counsels.
In his response to the judgment, Madikizela said:
He said it was sufficient that Mkhwebane had to pay the legal costs, and that he wouldn’t be taking any further action against her.
The Public Protector South Africa (PPSA) said it would not be appealing the judgment by the Eastern Cape High Court.
“The PPSA naturally is disappointed with the outcome, which has resulted in its report being set aside, but cannot on legal grounds, fault the ruling of Eksteen J, which is a detailed explanation of the issues ventilated, and the grounds relied upon by the court, in finding in favour of the applicants in this matter,” it said in a statement.
It added that the prospects of success in challenging the judgment on appeal appear to be slim and, in order to avoid expending already limited financial resources on further litigation in the matter, the PPSA would abide and respect the decision of the court.
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