Lawyers for Eastern Cape Premier Oscar Mabuyane and public works and infrastructure MEC Babalo Madikizela have launched a scathing attack on the report of Public Protector Advocate Busisiwe Mkhwebane. Mabuyane was represented in court by Advocate Tembeka Ngcukaitobi SC, while Madikizela, who was present in court, was represented by Advocate Anton Katz SC.
The Public Protector had no legal representation. She indicated last week that she would not oppose the urgent application to interdict the implementation of the remedial actions of her report, which included the tabling of it in the Eastern Cape provincial legislature and the institution by the Hawks of an investigation based on her findings.
However, on Tuesday, the Bhisho High Court ruled in favour of Mabuyane and Madikizela, who had made the application, pending the review application to have the report set aside.
Early this month, Mkhwebane released a report in which she found that Mabuyane, Madikizela and the provincial ANC itself had benefited to the tune of R450 000, R350 000 and R280 000, respectively, from R1.1 million siphoned from the former Mbizana Local Municipality [now known as the Winnie Madikizela-Mandela Municipality].
The monies were meant for the memorial events of the late former ANC struggle stalwart Winnie Madikizela-Mandela, who was born in the small town of Mbizana in the Eastern Cape.
Both Mabuyane and Madikizela are taking the findings by the Public Protector on judicial review. Mabuyane is the current chairperson of the ANC in the Eastern Cape, while Madikizela is the provincial treasurer in the same provincial executive committee.
Katz said it was probably a good thing that the Public Protector had not opposed the application and had not been in court, because she would have battled to answer some of the questions they had.
“Why would she sign one report at the end of September with certain remedial actions and another report 10 days later with different remedial actions; which is the report?” asked Katz.
He told the court that the office of the Public Protector held awesome power, one of the most powerful tools that the public had, protecting against maladministration and corruption in the governance sphere. However, that awesome power could bring down governments and could be used for “nefarious purposes, inappropriately, incompetently and unlawfully”. This awesome power had to be kept in check by the courts.
He also argued that his client, Madikizela, had not even been a public official during the time of the alleged misappropriation of funds, but that the Public Protector had ignored these facts.
“There is a litany of her applied principles which have no applicability to the particular facts on Madikizela. And the court has to ask the question at this stage as to why. We don’t know. But what we do know is that there is something fishy. There is something rotten in the state of the Public Protector’s report,” Katz argued in court.
He added that they believed they had a reasonable prospect of having the entire report set aside.
Katz said that, while the Public Protector would suffer no harm if the remedial actions were implemented, his client would suffer irreparable harm as a result of the ANC’s constitution, which would require him to step aside.
Ngcukaitobi said it was critical that the oversight and scrutiny that a court imposed should be swift. It was important that the conduct of the person who occupied the office of the Public Protector should be demonstrative of judicial qualities.
“The problem here is that true criminals would get away with having stolen public funds because of the gross incompetence of a Public Protector. That is the major concern of my client [Mabuyane].”
He said some of the crass and glaring mistakes of the Public Protector included that she ignored evidence by Mabuyane, in which he told her during her investigation that he had a loan agreement with Madikizela. The fact that Mabuyane had paid back the money he owed Madikizela in full, six months before Mkhwebane started her investigation, had also not been taken into consideration.
“She has not referred to the letter which informs her that the loan had been paid or the proof of payment. That is where the double agenda comes in, because a dispassionate and, I would submit, honest investigation reflects the version of the defendant. You cannot run an investigation on a one-track mentality with an outcome that you have in mind, and anything that is said between would just be ignored.
“So, it’s a crass error of facts, crass error of law. It basically shows that she does not know how to conduct an investigation … the facts before her – she just treats them as if they do not exist,” Ngcukaitobi said.
He argued that the Public Protector confused the legislation by quoting sections that did not exist or ignored disclosures that were made voluntarily by Mabuyane, which included a “top secret” disclosure of financial interest pertaining to the personal loan from Madikizela, which was made at the legislature on July 26 2019. He said the loan had been paid in May and the disclosure done in July, long before the investigation by the Public Protector.
“She just ignores this and that is why she comes to the conclusion that this matter must be investigated by the provincial legislature, because the facts that are before her… This is the problem, it’s gross incompetence or possibly a double agenda.”
Ngcukaitobi added: “It is almost clear that this report is not going to stand the test. The court hearing in Part B [the judicial review of the Public Protector’s report] will set this thing aside.”
Judge Rosaan Krüger delivered her judgment on the matter after listening to the arguments for an hour. Following a short adjournment, she ruled that the application was urgent. She also ruled that, “pending the final determination of the relief sought by the applicant in Part B [the judicial review of the Public Protector’s report] of this application, the Public Protector’s remedial order … is suspended. And the Public Protector is interdicted from enforcing the remedial orders of the report.”
Krüger ruled that the cost of the application was reserved.
Mkhwebane, who did not oppose part A of the application last week, filed papers in court indicating that she would oppose part B, which deals with the judicial review and setting aside of her report.
Previously the office of the Public Protector had said it stood by its report and that, although noting intentions by some of the parties to obtain an order suspending the implementation of the remedial action pending the judicial review of the report, “the office looks forward to a speedy review process to pave the way for full accountability”.