Public Protector Busisiwe Mkhwebane lost yet another court battle this week, this time against SekelaXabiso executive chairperson and Independent Regulatory Board for Auditors chair, Abel Dlamini.
The North Gauteng High Court handed down judgment on Monday, setting aside Mkhwebane’s findings of maladministration against Dlamini, who was said to have received “irregular amounts” of money during his tenure as administrator at Bapo Ba Mogale, in the North West. This was in relation to the construction of a royal palace.
“Portions dating to the Public Protector’s report dated June 19 2017 are declared invalid insofar it relates to the applicant,” according to the court order.
Mkhwebane has been instructed to pay costs for the court battle, but it “should not be borne by her personally”.
This is the latest in a string of court judgments awarded against Mkhwebane, who faces threats of removal from her position.
Before she ended her term, former Public Protector Thuli Madonsela was prompted to take up the investigation, following complaints from Freddy Mogale, Itumeleng Moerane, “members of the royal six” and a community member.
The complaints were laid in March 2012 and the findings were released in June 2017.
Through Mkhwebane’s investigation it was found that, when Dlamini was one of the administrators at Bapo, the correct tender processes were not followed in appointing Nhluvuko Civil Works to build the palace.
Mkhwebane found that Dlamini should have taken action against Nhluvuko Civil Works after receiving the report from project managers that there were no municipal approved building plans for the construction of the palace complex.
The construction of the palace is said to have escalated from the budgeted amount of R29.8 million to R115 million, resulting in the over-expenditure of about R85 million.
The Public Protector said that Dlamini was paid R8.12 million without the permission of the community.
In her recommendations, Mkhwebane ordered that the Special Investigations Unit conduct a forensic probe into Dlamini’s role into the appointment of Nhluvuko Civil Works to “build the palace without going out on tender or calling for quotations”.
The report recommended that the North West premier at the time, Supra Mahumapelo, approach the unit to investigate the money that was paid into Dlamini’s account.
Mkhwebane requested Mahumapelo find ways to recover all irregular expenditure, including the money that was paid into Dlamini’s account.
“Initiate a process to ascertain the irregular amounts … and determine which amounts can be recovered through civil process…” the report said.
She also asked the premier to draw up an implementation report and for him and the MEC to tabulate the steps taken and the mechanisms put in place with reference to remedial action.
However, Dlamini’s lawyer Hugh Eiser believed that Mahumapelo never adhered to the remedial action.
“But did the Public Protector follow up after the end of the 60 days? I doubt this very much. The Public Protector must be challenged on the follow-up. If she did not, then this is a serious omission on her part,” Eiser told City Press on Thursday.
He said there were many aspects of the matter which the North West government needed to account for.
“Of the +-R200 million maybe R50 million can be justified. The balance cannot. The North West government, which held the purse strings, must pay back now. The community needs the money desperately,” said Eiser.
The Public Protector’s office was unable to comment at the time of publication.