Court grants Oscar Mabuyane and MEC Babalo Madikizela interdict against Public Protector's remedial action
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THE Bhisho High Court on Tuesday suspended the implementation of Public Protector Busisiwe Mkhwebane’s remedial action, ordering the Hawks to investigate Eastern Cape Premier Oscar Mabuyane and Public Works MEC Babalo Madikizela.
Mabuyane and Madikizela launched the urgent application to interdict the remedial action pending another where they want to review and set aside Mkhwebane’s report.
Mkhwebane issued a report earlier this month after probing a complaint by Buffalo City metro resident Xolile Mashukuca in July 2019.
This was after a media report about alleged misappropriation of R3m for the memorial service for struggle icon Winnie Madikizela-Mandela in the Mbizana Municipality.
In her report, Mkhwebane said she found Mabuyane personally benefited R450 000, Madikizela R350 000 and the ANC R280 000 with assistance of businessman Loyiso Bam.
She referred the matter to the Hawks for consideration of criminal investigation with a view to prosecute the case.
Today’s application was not opposed by Mkhwebane but the battle is far from being won as the parties will exchange legal blows in the second round of litigation.
The parties are expected to now exchange court papers ahead of the hearing of Part B of the application that will seek orders to review and set aside Mkhwebane’s report and declare as unconstitutional and invalid her findings and remedial action.
Madikizela’s attorney Mvuzo Notyesi confirmed that the court has interdicted the Hawks from investigating his client with a view to have a criminal prosecution.
“That has been temporarily suspended. The MEC will not be under investigation by the head of the Hawks’ subsequent to the Public Protector’s report,” Notyesi said.
Notyesi said they were happy with the court’s ruling because it was what they had asked for.
“We have maintained our position that the Public Protector’s report is based on wrong principles of law. It is misguided,” he said.
“It reflects poor analysis.... That is a position we maintained and we demonstrated to the judge as to why even Part B of the application will be successful because there are patently errors in the report such as the Public Protector relying on non-existing statutes to make her remedial actions,” Notyesi said.
He also said they would now wait for the record of proceedings.
“We will analyse them, supplement the affidavit of Mr Madikizela and amend the notice of motion, if need be and get to the main hearing to Part B which we want to set aside ultimately,” Notyesi added.
Mabuyane’s attorney Ngqiqo Sakhela said his client, who doubles as the Eastern Cape ANC chairperson, has now been given space to concentrate on government and his organisational work.
“We approached the court on the basis that the Public Protector is not empowered by the very same statute she relied on to refer the matter for investigation by the Hawks,” Sakhela said.
He also said Mkhwebane also disregarded all necessary and vital information before she issued her report.
Mkhwebane’s spokesperson Oupa Segalwe confirmed that the application was not opposed because they always encourage those who want to take the report on review to also interdict the remedial action spelling out her directives to authorities.
Segalwe said the Constitutional Court had ruled that the Public Protector’s remedial action were binding until they were set aside by a court of law and secured an interdict while launching a review application.
He would not be drawn into discussing the merits or demerits of the case that has to be argued in Part B of the application.
“We are confident that the Public Protector has exercised her powers and executed her duties in line with the constitution and the law,” Segalwe said.