Public Protector Busisiwe Mkhwebane faces another legal challenge over her findings, after former Eastern Cape director-general Marion Mbina-Mthembu filed papers disputing her report.
Mbina-Mthembu has accused her of having misled the provincial government into channelling R330million from the Eastern Cape Development Corporation (ECDC) into a fund created for the funeral of former president Nelson Mandela.
Describing Mkhwebane as “politically managed”, Mbina-Mthembu said the buck stopped with former Eastern Cape premier Noxolo Kiviet and her executive committee, who rubber-stamped her suggestions and adopted them as their own.
“An Exco (executive council) resolution is a decision by the provincial executive council after it has considered the suggestions presented to it. In this case Exco is fully accountable for its decisions,” Mbina-Mthembu said.
“To say otherwise is disingenuous.”
Among the issues that Mbina-Mthembu has raised with Mkhwebane’s final report is the stated amount of R330m. In a 300-page report, Mkhwebane said provincial and municipal officials went on a spending spree that saw R330m diverted from the infrastructure development grant.
Mkhwebane told the provincial government to take action against Mbina-Mthembu, who was the province’s director-general at the time, for possible financial misconduct. Mbina-Mthembu was head of the provincial treasury when Mandela died in 2013.
Mbina-Mthembu said the Auditor-General (AG) differed with Mkhwebane on the amount that was used. Mkhwebane gave the amount as R330m, while the AG said it was R35.9m.
“I have presented the public protector with the AG’s tabled findings. She must have a responsibility to explain whether she places reliance on the AG, if she herself has performed a substantive audit and explain whether her office has an audit mandate. It cannot be true that both these numbers are correct.
“I can, however, give evidence that the ECDC returned to the Provincial Revenue Fund the entire R330m at the end of the 2013/14 financial year. The public protector’s report states that the Department of Economic Development and Environmental Affairs transferred R330m to the ECDC on January 31, 2014,” she said.
Mbina-Mthembu said Mkhwebane had used her as a scapegoat instead of blaming ANC heavyweights in the province who dictated how much money should be spent.
The ECDC’s R330m meant for development was instead set aside to fund Mandela’s funeral. According to the report, R201m had been set aside for schools, about R25m for water and sanitation, R98.2m for fencing and R43.5m for early childhood development centres.
Eastern Cape Premier Phumulo Masualle told Mkhwebane that the province had not budgeted for Mandela’s funeral, but that “funds had to be found for it”.
The funeral cost the ECDC more than R22m, which was meant to be invested in OR Tambo District, one of the country’s poorest areas.
The report also revealed that almost R800 000 was spent at KFC and McDonald’s to feed the 3 000 safety marshals who were deployed across Mthatha during the mourning period.
The provincial treasury described the money spent on fast food as “unforeseen”.
Mbina-Mthembu, however, said MEC Helen Sauls-August was responsible for the Port Elizabeth leg of the memorial.
“The quotations for the PE memorial service came directly from the ANC office - Mr Danster, who worked in the office of the current chairperson, sent them.
“He supposedly received them from the MEC, who was responsible for the PE memorial for the former president,” she said.
“I want the world to know that the amounts I could not account for - R9.1m and R4.967m - were spent by the MEC and the provincial ANC and they should answer for it. The lack of controls and the way that MEC Sauls-August spent the money, through or with the provincial ANC office, needs to be investigated. I am therefore indicating that the public protector was politically managed and that I have been made a scapegoat,” Mbina-Mthembu said.
The public protector's spokesperson, Oupa Segalwe, confirmed that a judicial review application had been received. He defended the report, insisting that Mbina-Mthembu failed to differentiate between the diversion of funds and the actual expenditure of funds.
“The public protector, in her report, holds that the provincial government improperly diverted funds, amounting to R330m, to be used for Mandela's funeral, which amount was appropriated by the ECDC for the acceleration of social infrastructure development.
"In her defence, Mbina-Mthembu relies on the AG’s finding which indicated that the actual amount spent by the ECDC was R35 963 889. However, Mbina-Mthembu is legally incorrect as she failed to differentiate between the diversion of the funds from actual expenditure.
"A diversion of funds is the use of funds for purposes other than for which they are meant,” he said.
“In this instance, the amount R330m was appropriated by the ECDC for social infrastructure development, but it was then diverted to be used for the funeral of late president Mandela. The amount of money spent was as a result of diverted funds. Nowhere in the report did the public protector hold that R330m was spent on the funeral. Instead, she held that the funds (R330m) were diverted from social infrastructure development to the funeral.
"In the report, the public protector holds that the ECDC lost more than R22m that was originally intended for social infrastructure development,” Segalwe said.
“I want the world to know that the amounts I could not account for - R9.1m and R4.967m - were spent by the MEC and the provincial ANC and they should answer for it. The lack of controls and the way that MEC Sauls-August spent the money, through or with the provincial ANC office, needs to be investigated. I am therefore indicating that the public protector was politically managed and that I have been made a scapegoat,” Mbina-Mthembu said.
The public protector's spokesperson, Oupa Segalwe, confirmed that a judicial review application had been received. He defended the report, insisting that Mbina-Mthembu failed to differentiate between the diversion of funds and the actual expenditure of funds.
“The public protector, in her report, holds that the provincial government improperly diverted funds, amounting to R330m, to be used for Mandela's funeral, which amount was appropriated by the ECDC for the acceleration of social infrastructure development.
"In her defence, Mbina-Mthembu relies on the AG’s finding which indicated that the actual amount spent by the ECDC was R35 963 889. However, Mbina-Mthembu is legally incorrect as she failed to differentiate between the diversion of the funds from actual expenditure.
"A diversion of funds is the use of funds for purposes other than for which they are meant,” he said.
“In this instance, the amount R330m was appropriated by the ECDC for social infrastructure development, but it was then diverted to be used for the funeral of late president Mandela. The amount of money spent was as a result of diverted funds. Nowhere in the report did the public protector hold that R330m was spent on the funeral. Instead, she held that the funds (R330m) were diverted from social infrastructure development to the funeral.
"In the report, the public protector holds that the ECDC lost more than R22m that was originally intended for social infrastructure development,” Segalwe said.