Court finds suspended public protector Mkhwebane had ‘ulterior motive’ regarding Winnie funeral report

It has been one bruising loss after another for suspended public protector Busisiwe Mkhwebane, with the latest coming from the Eastern Cape high court, which has set aside her report and recommendations against premier Oscar Mabuyane and former MEC Babalo Madikizela. 

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. 

“Mr 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.  

He said the ruling ANC had initially chosen to negotiate a price with the taxi and bus associations but this changed when the government declared a state funeral. 

The provincial department of sports, arts and culture had awarded the tender to Maikenjo Trading CC to transport Alfred Nzo residents to the memorial service and Madikizela said this resulted in quarrels between the municipality and taxi associations, who believed the contract should have been given to locals.

Maikenjo Trading CC ceded the work to local association Koo Construction and Projects after taxi owners made threats that no outside transport services would be used at the memorial, Madikizela added.

The provincial government delayed payment for work done by the taxi owners, resulting in further threats from the sector.

“It is at this stage that they again approached us claiming that the discounted fee was for the ANC not for the government. I saw the matter with a potential to deteriorate. I thus engaged the leadership of the ANC to allow me to pay a sum of R1.1 million to Mr [Mluleki] Cwele of Koo Construction and Projects … Koo simultaneously had to repudiate their claim against the municipality and thus had to write a letter to nominate to whom the money must ultimately be paid. This is when Mthombeni Projects Construction comes in,” said Madikizela.

He said Bam was invoiced for work done. Madikizela added that, at the time of solving the issue, the ANC was due to pay him for monies owed. 

“I sacrificed so that we [could] pay the taxi owner. It is at that point where I asked a friend and colleague to whom I had requested the money to be made in favour to invoice the municipality,” he said. 

Mkhwebane poked holes in Madikizela’s explanation, questioning how the ANC involved itself in government business. 

“After the payment of R1.1 million by the ANC to Mr Cwele, why did Koo Construction not cede their claim to the ANC? It does not appear from the evidence of Mr Madikizela that the ANC agreed that the R1.1 million can be paid to Mthombeni Projects and be further disbursed by him as he did,” Mkhwebane said. 

The Mail & Guardian reported that the Hawks were waiting for the National Prosecuting Authority (NPA) to decide whether they would prosecute. 

Insiders told the M&G that the Hawks were frustrated with the NPA, which was allegedly  dragging its feet on charging Mabuyane. They said the NPA wanted to ensure that it had a watertight case before charging Mabuyane.