By Malibongwe Dayimani.
The Special Investigating Unit (SIU) expanded its investigation into academic fraud at the University of Fort Hare to focus on Eastern Cape Premier Oscar Mabuyane.
But this, according to Mabuyane’s lawyer, advocate Thembeka Ngcukaitobi, was outside the ambit of the investigation.
In doing so, argued Ngcukaitobi, the SIU deviated from the proclamation issued by President Cyril Ramaphosa.
Mabuyane approached the Bhisho High Court on Tuesday to seek an interdict to block the SIU from making him a subject in the Fort Hare investigation.
Ngcukaitobi told Judge Thandi Norman the SIU undertook a “drastic measure” by issuing Mabuyane with a Section 5 notice, attached with a criminal sanction.
He said he views the SIU’s application for a warrant of search and seizure at the home and offices of Mabuyane, despite apparently having invited him to a meeting to give evidence, as a form of abuse.
Ngcukaitobi said: If you [are] an investigative organ, you have coercive powers by legislation, but you can exercise those powers and achieve the object with less restrictive means. You have to exhaust self-restricting means first before embarking upon the intrusive powers.
Ngcukaitobi said the SIU’s behaviour was unlawful, irrational and abusive, considering that Mabuyane was the one who approached the university and offered to help its investigation, because of the constant reference to his name in the media.
“This is the most drastic measure you can take and, in addition, he wrote a letter to them to say I have brought an application in the High Court. Can you let the judges decide, before you carry on…they [SIU] did not accept,” said Ngcukaitobi.
He said the SIU expanded its scope to include Mabuyane – and never consulted Ramaphosa about it.
Ngcukaitobi told the court the SIU could not change the scope of the president’s proclamation, without sending him an application for approval.
Ngcukaitobi said the proclamation was issued to investigate academic fraud in the university’s Honours programme.
He said Mabuyane did not complete an honours degree at Fort Hare, but registered for the master’s programme via the recognition of prior learning (RPL) policy.
SIU lawyer, advocate Halton Cheadle, said Ngcukaitobi did not have a good grasp of the proclamation.
“Respectfully, our learned friend has not read the proclamation with the care that is required. When one looks at the proclamation itself, it specifically includes matters that are relevant to, connected with, incidental or ancillary to the matters mentioned in the schedule,” said Cheadle.
He added that the SIU did not invent its own ambit of the investigation.
Cheadle said: The premier, as your ladyship knows, is protesting his innocence as he is entitled to do and if that is indeed the case he has absolutely nothing to fear. And it is difficult to square that stance with his endeavour to stop the investigation at all costs.
The premier wants the interim interdict to stay in place, pending the court hearing part B of his application.
In it, he seeks to have the SIU’s decision to investigate him, as part of its general investigation into Fort Hare, declared unlawful and set aside.
Ngcukaithobi said Mabuyane did not approach the court in his capacity as the premier of the province, but as a former master’s student.
Arguments wrapped up by the end of the day and the matter was postponed to next Tuesday for judgment.