MEC Babalo Madikizela says public protector’s remedial action causes irreparable harm and prejudice
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Cape Town - EASTERN Cape Public Works MEC Babalo Madikizela launched an urgent application to interdict the remedial action imposed by Public Protector Busisiwe Mkhwebane, saying it would cause him irreparable harm and prejudice.
The urgent application, lodged in the Bhisho High Court, is pending another where Madikizela wants to review and set aside Mkhwebane’s report.
Mkhwebane issued a report earlier this month after probing a complaint by City metro resident Xolile Mashukuca in July 2019, following a media report about alleged misappropriation of R3 million for the memorial service for Struggle icon Winnie Madikizela-Mandela in the Mbizana.
In her report, Mkhwebane said she found Premier Oscar 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 prosecution.
In court papers, Madikizela said he would bring the urgent application for the interdict on October 26.
“Part A seeks on an urgent basis an order interdicting and restraining the implementation of and reliance on the public protector’s report in any action against me pending the final determination of Part B,” he said.
Madikizela also said his Part B would seek orders reviewing and setting aside, and declaring as unconstitutional and invalid the findings and the remedial action.
The MEC said the remedial action was manifestly unlawful and if implemented would cause his irreparable harm and prejudice.
He also said Mkhwebane did not have the power as contemplated by the section she used to refer the report to the Hawks.
“Additionally, the remedial action taken by the public protector together with the irrational and unlawful findings against me as contained in the report, unlawfully infringe my good name and reputation, and has damaging effects to my personal and professional life.”
In her report Mkhwebane found that Madikizela instructed Bam in 2018 to submit an R1.1m invoice to the Mbizana municipality, now called Winnie Madikizela-Mandela municipality and ordered him to divide the funds for his, premier Oscar Mabuyane and ANC’s benefit.
But, Madikizela denies instructing Bam to do anything for the unlawful and improper benefit.
“The findings are wrong and based on the affidavits of a person who has confessed to have conducted himself in criminal manner.”
He charged that Mkhwebane’s report was based on erroneous interpretation and understanding of certain facts as well contractual agreement.
“I will deal with this in detail in my supplementary founding affidavit in Part B of the application which I will depose to after the record, as contemplated by Rule 53, has been provided to me.”
Madikizela argues that the information Mkhwebane relied on did not support the findings of corruption, maladministration and misuse of public funds against him.
Mkhwebane did not have the power to investigate him as he did not hold public office in 2018 and that she acted unlawfully and outside her mandate by investigating him as a private individual.
“Conclusions and findings of the report are irrational because it is based on erroneous conclusion of fact and law.”
He maintained that there was no doubt that the findings against him infringed his dignity and good name.
“It casts me as a corrupt official who had used and abused public power and funds for personal benefit.
“It does so in circumstances where I had no public power because I was not a public official holding public office at the time of the allegation contained in the report,” he said.
Madikizela also said the harmful effects of the report on his career were clear.
“If the report may be used at this stage against me and prior to the conclusion of the review application, it would have serious consequences for my good name, reputation and political career.”
He stated that various political actors have already sought to use the report against him for political expediency.
“The reputational harm to the subject of the report far outweighs any possible harm that could be said to exist for the public protector.
“It would be manifestly unjust if these political consequences are allowed to take root where the report might later be reviewed and set aside,” he said.
“I would not at that later stage be able to undo the harm that has already occurred.
“There is no other remedy capable of providing me with the relief I seek at this stage other than an interim interdict by this court,” Madikizela said.
Mkhwebane’s spokesperson Oupa Segalwe said their office has not been served with papers yet.
“Parties are entitled to interim review processes but it is up to the court to decide whether they are entitled to such for not,” Segalwe said.
Mabuyane and municipal manager Luvuyo Mahlaka have indicated that they would take the report on judicial review too.