The Eastern Cape’s head of public works, Babalo Madikizela, has filed an application to the high court in Bhisho to interdict the public protector’s report released last week, which implicated him and Premier Oscar Mabuyane in wrongdoing related to Winnie Madikizela-Mandela’s funeral. 

In his founding affidavit filed on Thursday, Madikizela is asking the court to review and set aside advocate Busisiwe Mkhwebane’s report and declare it unconstitutional and invalid. 

Madikizela is also calling for the high court to set aside Mkhwebane’s remedial action, which directed the Directorate for Priority Crimes Investigation (Hawks) to open a criminal investigation into Mabuyane and Madikizela’s actions.

Madikizela said much of what the public protector relied on in the report “could never be applied to me because I was not a state employee subject to the provisions of the PFMA (Public Finance Management Act), treasury regulations, the MFMA (Municipal Finance Management Act) and the MSA (Municipal Systems Act) which could be relevant to determining my liability in this matter”.

“Self-evidently these statutory instruments could not be used to determine liability against me,” he added.

Madikizela contends that Mkhwebane does not have the powers to make this directive to the Hawks and the remedial action infringes his name and reputation, with damaging effect on his personal and professional life.

“There can be no doubt that the findings against me in the public protector’s report infringe my dignity and good name. It casts me as a corrupt official who had used and abused public power in 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 allegations contained in the report,” he said.

The report found that Madikizela instructed Lonwabo Bam of Mthombeni Projects Construction to submit an invoice to the Mbizana municipality for R1.1-million, which later changed hands and landed in his account and that of Mabuyane. 

“I deny that I instructed Bam to do anything for him for the unlawful and improper benefit of Mr Mabuyane and myself and the ANC. The findings are wrong and based on the affidavit of a person who has confessed to have conducted himself in a criminal manner.

The public protector’s report is based on an erroneous interpretation and understanding of certain facts as well as certain contractual agreements,” Madikizela said. 

Arguing against Mkhwebane’s authority to instruct the Hawks to investigate, Madikizela said she relied on section 6 (4)(c)(ii) of the Public Protector’s Act which he said only permitted her to refer non-criminal matters with a bearing on her case.

In his account of how R1.1-million of municipal funds was spent, Madikizela said all the money was paid to taxi and bus associations contracted to ferry people in Alfred Nzo local municipality to attend the memorial service of struggle veteran Winnie Madikizela-Mandela. 

He said the ruling ANC had initially chosen to negotiate a price with the taxi and bus associations, but this changed when the government declared a state funeral for the anti-apartheid icon. 

The provincial department of sports, arts and culture had awarded the tender to Maikenjo Trading CC, to transport Alfred Nzo residents to the memorial service and Madikizela said this resulted in quarrels between the municipality and taxi associations, who believed the contract should have been given to locals.

Maikenjo Trading CC ceded the work to local association Koo Construction and Projects after taxi owners made threats that no outside transport services would be used at the memorial, Madikizela added.

The provincial government delayed payment for work done by the taxi owners, resulting in further threats from the sector.

“It is at this stage that they again approached us claiming that the discounted fee was for the ANC not for the government. I saw the matter with a potential to deteriorate.

I thus engaged the leadership of the ANC to allow me to pay a sum of R1.1-million to Mr [Mluleki] Cwele of Koo Construction and Projects … Koo simultaneously had to repudiate their claim against the municipality and thus had to write a letter to nominate to whom the money must ultimately be paid. This is when Mthombeni Projects Construction comes in,” said Madikizela.

He said Bam was invoiced for work done. Madikizela added that at the time of solving the issue, the ANC was due to pay him for monies owed. 

“I sacrifice that we pay the taxi owners and I can wait. It is at that point where I asked a friend and colleague to whom I had requested the money to be made in favour to invoice the municipality,” he said. 

Mkhwebane poked holes in Madikizela’s explanation, questioning how the ANC involved itself in government business. 

“After the payment of R1.1-million by the ANC to Mr Cwele, why did Koo construction not cede their claim to the ANC. It does not appear from the evidence of Mr Madikizela that the ANC agreed that the R1.1-million can be paid to Mthombeni projects and be further disbursed by him as he did,” Mkhwebane said. 

The Mail & Guardian recently reported that the Hawks were waiting on the National Prosecuting Authority (NPA) to decide on whether they would prosecute. 

Insiders told the M&G that the Hawks were frustrated with the NPA who are said to be dragging their feet on charging Mabuyane. The insiders said the NPA wanted to ensure that they had a watertight case before charging Mabuyane, a prominent ANC figure in the Eastern Cape province. 

Speaking to the M&G, Cwele, who is part of a local taxi association in Mbizana, said taxi owners refused to wait for the municipality to pay them and rather asked Madikizela and the ANC to help make the payment for transport services.

“As taxi owners, we did everything above board. We could not wait for the municipality to make the payment and we had to go to the ANC to pay us and they would deal with the municipality because we don’t know this paperwork that the municipality needed,” Cwele said. 

He emphasised that he told Mkhwebane the taxi owners had done the work and demanded payment after the municipality delayed payment.  

“I don’t know how the premier got involved because we have never dealt with him. The person who we dealt with in this programme was Madikizela,” he said.

Mkhwebane found that Mabuyane personally benefited R450 000 from the amount of R1.1-million for renovations to his home. 

It further found that Madikizela benefited R350 000 from the amount of R1.1-million which went into the FNB account of IPM Plant Hire CC, which is a private company owned by his wife, Zona Zetu Siyazithanda Madikizela.

The ANC benefited R280 000 from the amount of R1.1-million, she said