Eastern Cape Premier Oscar Mabuyane has taken a step forward in his fight to maintain his job by filing an urgent appeal in the Bhisho High Court against Public Protector Busisiwe Mkhwebane, in which he is publicly contesting her findings against him.
Mabuyane, Eastern Cape Public Works MEC Babalo Madikizela, and the provincial ANC itself benefitted to the tune of R450 000, R350 000, and R280 000, respectively, from R1.1 million looted from the old Mbizana Local Municipality, according to a report released last Friday by Mkhwebane (now known as the Winnie Madikizela-Mandela Municipality). The funds were meant to be used for a memorial service for Winnie Madikizela-Mandela, a former ANC struggle leader.
Mabuyane has enlisted the help of renowned lawyers Tembeka Ngcukaitobi (SC) and Apla Bodlani to file court documents against Mkhwebane in what is likely to be the most important political battle of his career. This follows reports that the premier, who is also the ANC's Eastern Cape chairperson, filed court papers in September in the same court to block the Hawks from investigating charges of fraud, corruption, and money laundering leveled against him. These were the identical allegations made against him by the Public Protector in her report.
Mabuyane's court filings indicated that the findings against him were unfounded in his urgent application filed on Friday. Mabuyane sought interim relief from the Public Protector's report in a two-part application, claiming that the remedial actions ordered by the Public Protector were "manifestly unconstitutional, regrettable, and detrimental."
"In part A, I seek an order interdicting and restraining the implementation of and reliance on the Public Protector's report in any action against me awaiting the outcome of part B." This is what I refer to as interim interdictory relief.
"In section B, I seek orders examining, setting aside, and declaring the conclusions in the Public Protector's report, as well as the remedial actions imposed, as illegal and invalid... In his founding affidavit, Mabuyane wrote, "I refer to this relief as the review and declaratory relief."
The first respondent was the Public Protector, while the second, third, and fourth respondents were the speaker of the Eastern Cape province assembly, the national head of the Directorate for Priority Crime Investigation (Hawks), and the minister of police, respectively. The conclusions reached by the Public Protector were "irrational, capricious, and contrary to facts," according to Mabuyane. It has been established that the Public Protector is not permitted to reach random judgments based on speculation and guesswork."
The premier claimed that when he chose to remodel his home in July 2018, he requested Madikizela for an R450 000 loan.
“Mr Madikizela and I agreed that the money would be paid directly to my architect … In this regard, on July 23, a loan agreement was signed between me and Mr Madikizela. The Public Protector was given a copy of the loan agreement, which made it clear that the first payment would be made in 2019, until 2023, when the full amount would be paid,” stated Mabuyane.
“As matters stand, the amount has been fully paid,” he added.
Mabuyane stated that he had first paid R200 000 and later R250 000.
“The Public Protector knew that the money was paid some six months before she commenced her investigation. Yet she not only investigated but also maliciously failed to factor this evidence into her conclusions,” read his court papers.
In the papers, Ngcukaitobi and Bodlani claimed that the Public Protector's report and the subsequent corrective action slandered Mabuyane, leading to calls for him to resign. According to them, the study portrayed him as "dishonest, corrupt, and untrustworthy."
Following rebukes from the ANC in the province, which defended Mabuyane and Madikizela and questioned why the report was released right before the local government elections, the Public Protector's office indicated earlier this week that it stood by its report. Meanwhile, Ace Magashule, the ANC's suspended secretary-general, has denied conspiring with the Hawks to have Mabuyane investigated. He has since sought legal advice and has decided to "stop breathing any oxygen into unfounded charges."
Mabuyane has stated that Magashule is behind the allegations leveled against him. According to a source close to Mabuyane, the ANC, national government, and Eastern Cape province government are best equipped to deal with the claims, adding that "premiers are nominated by President Cyril Ramaphosa and only he has the capacity to act against Mabuyane."
"Since previous health minister Zweli Mkhize resigned even before he was indicted in the Covid-19 corruption affair involving Digital Vibes, it shouldn't be difficult for Ramaphosa to be consistent." Magashule will return to court on Tuesday to face charges of fraud, corruption, and money laundering, and his attorneys have told him not to comment on "issues that are under investigation by the authorities and have nothing to do with me."
Ironically, Brigadier Adriaan Calitz, the Hawks investigator in charge of Mabuyane's case, is also in charge of the inquiry into Magashule's case.
"Why would Calitz still arrest him if he [Magashule] was working with Calitz?" Someone is attempting to politicize a valid probe, according to a source.
"We affirm that the matter is still under investigation by the Hawks under a prosecution-guided inquiry process," Free State National Prosecuting Authority spokesperson Anelisa Ngcakani said yesterday. At this time, no other information will be shared."
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