Babalo Madikizela wants Mkhwebane's graft report set aside

The public protector has no power to investigate me, nor does she have power to instruct the Hawks to do so. 

This is the argument presented by Eastern Cape MEC Babalo Madikizela, a central figure in the alleged criminal ring accused of siphoning money from the Mbizana local municipality in the province's Wild Coast region.

Eastern Cape businessperson Lonwabo Bam is also allegedly implicated in the scandal.

Madikizela filed papers in the Bhisho High Court on Thursday, asking it to set aside public protector Busisiwe Mkhwebane’s report which found that he and premier Oscar Mabuyane improperly benefited from the funds meant for the memorial service of Struggle stalwart Winnie Madikizela-Mandela.

The report was released last week, placing Mabuyane, a key ally of President Cyril Ramaphosa, at the centre of a political and legal storm that has captured the nation. 

Mkhwebane found that of the R1.1m that was improperly transferred from the municipality, Mabuyane received R450,000 which paid for renovations to his private house. 

She also found that Madikizela received R350,000, while some of the money went to the ANC in the province where Madikizela is party treasurer. 

Mkhwebane referred the matter to the Hawks for a criminal investigation.

Mabuyane is yet to file his application to have the report set aside. 

In his court papers, Madikizela gives four reasons why the court should invalidate Mkhwebane’s report.

Madikizela said Mkhwebane did not have powers to hand over the report to the Hawks and instruct the Hawks to consider criminal investigations with a view to prosecution. 

He argued that Mkhwebane acted outside the bounds of her power by “investigating me as a private individual not holding public office in 2018”. 

Madikizela said the law Mkhwebane relied on did not empower her to refer criminal matters. It only empowers the public protector to refer non-criminal matters that have a bearing on her investigations. 

He further argued that the findings of the report are irrational because it is based on erroneous conclusions of fact and law. 

This is because as a non-employee of the state at the time, he was not subjected to the laws that govern municipalities upon which Mkhwebane relied to find liability. 

“I deny that I instructed Bam to do anything for the unlawful and improper benefit... the findings [by Mkhwebane] are wrong and based on the affidavits of a person who confessed to have conducted himself in [a] criminal manner,” Madikizela stated in court papers.

Bam, who deposed two affidavits on the matter linking both Madikizela and Mabuyane to wrongdoing, refused to comment on Thursday. “I have been advised not to comment at the moment,” he said.

The Hawks, who have already launched an investigation into Mabuyane, said on Thursday that they handed a docket over to the National Prosecuting Authority (NPA) for a decision seven months ago.

Hawks head Gen Godfrey Lebeya said their investigation into allegations of corruption and fraud, which began in May 2019, was completed in March this year when the docket was handed over to the NPA.

Lebeya told Newsroom Afrika that a prosecutor who had been handling this matter left the NPA after the docket had been handed over.

NPA Eastern Cape spokesperson Anelisa Ngcakani could not respond to the question of what happened since the docket was sent to them for a decision.

April 27 2019

Eastern Cape businessman Lonwabo Bam, director of Mthombeni Projects, goes to a police station and signs an affidavit stating that he had been part of a fraud and corruption ring that siphoned money from the local municipality. He claims that he had been instructed by Madikizela to put in a fraudulent invoice to the municipality claiming R1.1m for work which was in fact never done. Upon receipt of the money and allegedly on instruction from Madikizela, Bam claims he transferred it to various accounts, including that of Madikizela, the ANC and to pay for renovations to then MEC Oscar Mabuyane’s home.

May 22 2019

Oscar Mabuyane is elected premier of the Eastern Cape

May 2019

The police's elite investigating unit, the Hawks, in the Eastern Cape, began investigating the claims made by Bam in an affidavit.

July 2019

Public Protector Busisiwe Mkhwebane receives a complaint from Buffalo City metro resident Xolile Mashukuca following report in Sowetan's sister publication, Daily Dispatch. The paper had reported about misappropriation of amounts totalling R2m and R1m, with alleged assistance of businessman Bam.

March 2021

The Hawks complete their investigation and hand over the docket to the National Prosecuting Authority for a decision on whether to prosecute or not.

July 2021

Mabuyane gets contacted by a Hawks investigator based in the Free State and gets informed that he's being investigated for fraud, corruption and money laundering. Mabuyane is asked for a meeting.

August 4 2021

Mabuyane, in the presence of his lawyer, gives a warning statement in a meeting with the investigator from the Hawks.

September 14 2021

Mabuyane approaches the Bisho High Court and files an application in which he asks the court to force the Hawks to hand him the information contained in its "investigation file" against him. Alternatively, he asks the court to set aside the Hawks decision to investigate him as it’s unlawful, invalid and unconstitutional. He alleges that suspended ANC secretary-general Ace Magashule is behind his investigation, which he described as “political witch-hunt.”

October 8 2021

Mkhwebane releases her report which made damning findings against Mabuyane for irregularly benefiting from the R1.1m tender that was meant for the memorial service of Struggle icon Winnie Madikizela-Mandela. Mkhwebane indicates that she has referred the matter to the Hawks to investigate.

October 15 2021

Hawks head Gen Godfrey Lebeya confirms the Hawks will oppose Mabuyane's high court application in the Bisho High Court.