By Lehlohonolo Lehana.
Public Protector’s office says it has noted the Eastern Cape High Court Judgement which has set aside her report and recommendations against Premier Oscar Mabuyane and former MEC Babalo Madikizela and it will not be appealing the judgement.
In a statement, “the office said the prospects of success in taking judgement on appeal are slim and in order to avoid already limited financial resources on further litigation on this matter, the office wish to confirm that it will not appealing the judgement.”
Judge Jannie Eksteen on Tuesday ordered that the report, which found criminal action on the part of Mabuyane and Madikizela relating to the funeral of Winnie Madikizela-Mandela, be set aside with costs.
Eksteen said the report by the public protector — who is facing impeachment proceedings — was “inconsistent with the Constitution of the republic of South Africa”.
Reacting to the judgement, Madikizela said that he welcomed the judgement adding that he had always maintained that the report by Mkhwebane was flawed and inconsistent with the laws of the republic.
Mabuyane said he felt vindicated by the decision of the court.
“It is my belief that the decision of the public protector was not justice or rule of law but it was about politics. It was intended to force the implementation of the step aside rule such that I am removed from active politics,” Mabuyane said.
In 2021, Mkhwebane released a report which found that Mabuyane and the then Eastern Cape head of public works Madikizela criminally benefitted from a portion of the R1.1 million of Mbizana municipal funds meant for Madikizela-Mandela’s memorial service.
The report found Madikizela had instructed Lonwabo Bam of Mthombeni Projects Construction 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.
After finding 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 as 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 and Madikizela 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 cleared his name.
Eksteen said Mkhwebane was not competent to investigate questions related to Mthombeni Projects Construction unless it was established that the funds related to public funds.
“Madikizela’s application is well founded and he is entitled to costs occasioned thereby,” the judge said, accusing Mkhwebane of not applying her mind and “acting with an ulterior motive”.
In his account of how R1.1 million of municipal funds was spent, Madikizela said all the money was paid to taxi and bus associations contracted to ferry people in Alfred Nzo local municipality to attend the memorial service of the struggle veteran.