Suspended public protector Busisiwe Mkhwebane’s damning report on Eastern Cape premier Oscar Mabuyane and public works MEC Babalo Madikizela has come under sharp scrutiny at the Bhisho High Court.
Madikizela’s senior counsel, Anton Katz, accused Mkhwebane of overreaching her investigative powers when she probed the monies paid to Madikizela through his former business associate Lonwabo Bam.
R1.1-million was paid by the Winnie Madikizela-Mandela (formerly Bizana) local municipality and the R2.2-million by the Eastern Cape department of transport. It was also alleged that out of the R1.1-million, Madikizela gave R450 000 to Mabuyane for payment toward the building of a security wall at his house.
In her findings, Mkhwebane said Mabuyane unduly benefitted when Madikizela gave him the R450 000. As part of her remedial action, she directed the Hawks and the National Prosecuting Authority to investigate the two politicians for money-laundering.
In his defence, Mabuyane argued that he took out a loan from Madikizela, when the former MEC was a businessman, before his short-lived time in the Eastern Cape cabinet.
On the other hand, Madikizela has been arguing that he paid the municipality service providers and the taxi operators who transported mourners for the memorial service of late struggle icon Winnie Madikizela-Mandela from his own pocket.
This while the municipality was waiting for money from the provincial department of sport, recreation, arts and culture. It was after the funds had come through that he was advised to submit an invoice, and that was when he requested Bam to compile an invoice.
The duo interdicted Mkhwebane’s report and its remedial action from being implemented unopposed pending their application to have it set aside.
During court arguments to set the report aside, Katz argued that Mkhwebane investigated money-laundering, which was outside of her scope of investigation. He said the suspended public protector repeated the mistake she made when probing President Cyril Ramaphosa’s CR17 campaign funding.
Katz also argued that Mkhwebane was not supposed to investigate money-laundering, even when she was investigating something else and stumbled upon it, saying she cannot make it a part of her remedial action and force other state organs to investigate using her report as part of their evidence.
Presiding judge Jannie Eksteen expressed concern that an investigative body like the Office of the Public Protector is not expected to touch certain evidence, even when there is blatant wrongdoing.
In response to Katz, the Office of the Public Protector said it can refer any matter that is beyond its scope to relevant authorities.
Elizabeth Baloyi-Mere, senior counsel for the Office of the Public Protector, said Mkhwebane made no findings against Mabuyane, but had included him in the remedial action because of the money that was paid by his housing project manager.
Baloyi-Mere conceded when Eksteen pointed out that the loan between Mabuyane and Madikizela could have indeed been a loan agreement, saying however that there is a criminal element on the matter that the court should make pronouncements on.
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