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Public Protector Busisiwe Mkhwebane is being taken on by Eastern Cape director-general (DG) Marion Mbina-Mthembu over her finding that the province misused R300 million of state money for Nelson Mandela’s funeral.
Mbina-Mthembu, who branded Mkhwebane as “idiotic” in an interview with City Press, insists that of the R300 million, only R35.9 million was used, which was reflected in a report by the Auditor-General.
She now wants Mkhwebane to explain how she decided that R300 million meant for the Eastern Cape Development Corporation [ECDC] to accelerate social infrastructure development was “improperly diverted by the Eastern Cape government to be used for the funeral of former president Mandela”.
Money was allegedly used to buy fast food from KFC and McDonald’s outlets, as well as T-shirts and transport for mourners to various memorial service events around the province.
At the time Madiba died in December 2013, Mbina-Mthembu was the director-general of the department of provincial planning and treasury.
Now DG of the province, Mbina-Mthembu insists she has been used as a scapegoat, insisting that the entire R300 million was from provincial savings and not the ECDC as Mkhwebane found.
Mbina-Mthembu’s lawyers wrote to Mkhwebane on Monday, saying that they were going to approach the court on an urgent basis to compel her to provide a record pertaining to her findings “as it is clear that she [Mkhwebane] and her attorneys are abusing the privilege of indulgence that the applicant [Mbina-Mthembu] has given her”.
Mbina-Mthembu’s lawyers have been asking for the record of and reasons for her decision since February because they intend taking the matter on review.
Mbina-Mthembu’s letter, via FJ Ngxola Attorneys, states that the sheriff served papers on the Office of the Public Protector on February 27 and Mkhwebane had 15 days to dispatch all records and reasons pertaining to her decision.
But by March 20, when the 15 days had expired and there was no response, Mkhwebane’s lawyers asked for more time which they were given, but they have again failed to comply.
Meanwhile, Mbina-Mthembu is furious that Mkhwebane found that she misled the Eastern Cape provincial executive committee (PEC) by recommending that the ECDC funds be used for Madiba’s funeral.
She argues she made only a recommendation which the executive committee could have disregarded if they wished.
In her findings published on December 4 2017 on the eve of the fourth anniversary of Mandela’s death, Mkhwebane stated in her report: “Mbina-Mthembu accordingly misdirected the Eastern Cape provincial exco [executive committee] in this regard. Her proposal was irrational and unlawful.
“This resulted in an irrational decision by the former Eastern Cape provincial exco that culminated in an expenditure by the ECDC that was unauthorised as contemplated by the Public Finance Management Act [PFMA]. (The funds were never voted for the purposes that they were used for). Ms Mbina-Mthembu’s conduct was improper and constituted maladministration.”
But Mbina-Mthembu hit back, saying she should not be singled out for any wrongdoing.
“I recommended and never forced the exco to make any decision.
“The recommendation was based on Treasury regulations, which gives effect to the provisions of the PFMA. Exco also had a duty to ensure through its secretariat that all was in order. If indeed the exco made an irrational decision, it is still their decision,” she said.
“It is difficult to comprehend how writing a requested memorandum can be defined as ‘improper conduct’ and judged to be constituting ‘maladministration’. I am unsure how to reconcile the roles and responsibilities of the premier and the exco as defined in the Constitution and the statement that the exco took the advice and seemingly never consciously engaged with the recommendation I made through the DG of the province,” she said.
Concluding her findings, Mkhwebane said Mbina-Mthembu knew of the need to plan and budget for Mandela’s funeral since at least 2011, but “no provision was made”.
But Mbina-Mthembu said provincial funeral preparations were the responsibility of the premier’s office which was expected to submit a budget bid for that eventuality, but failed to do so.
“This never happened – only when the demise of former president was announced did the premier’s office request Treasury to prepare a Cabinet memorandum for a funding proposal,” she said.
Mbina-Mthembu said she was not the director-general of the province at the time of the funeral which “seems to escape the mind of the Public Protector”.
“The Public Protector is very idiotic. She has reported as if I was DG then,” Mbina-Mthembu said.
Mkhwebane’s spokesperson Oupa Segalwe said she stood by her findings and would defend Mbina-Mthembu’s review application.
Segalwe said Mkhwebane recently filed the rule 53 records which Mbina-Mthembu was asking for.
“Ms Mbina-Mthembu will then have 10 days to file her supplementary affidavit (if any) and the Public Protector will have 30 days to file her answering affidavit. The Public Protector has not received the supplementary affidavit from Ms Mbina-Mthembu,” Segalwe said.
Asked why it took so long for Mkhwebane to provide Mbina-Mthembu with the records, Segalwe said it was because the investigation into the Eastern Cape matter involved several organs of state, including the ECDC and a number of municipalities.
“That said, the record has been filed and so has the notice to oppose,” he said.
Asked about the discrepancies in the amounts with the Public Protector speaking about R300 million while Mbina-Mthembu acknowledged only R35.9 million, Segalwe said Mkhwebane stands by her findings.
“The Public Protector held that the Eastern Cape provincial government improperly diverted funds, amounting to R300 million to be used for the funeral of president Mandela, which amount was appropriated to the ECDC for the acceleration of social infrastructure development,” he said
Segalwe said Mbina-Mthembu relied on the Auditor-General’s finding which indicated that R35.9 million was actually spent, but she was “legally incorrect as she failed to differentiate the diversions of funds from actual expenditure of the funds”.
“A diversion of funds is the use of funds for purposes other than for which they are meant,” he said.
“Nowhere in the report did the Public Protector hold that R300 million was spent on the funeral. Instead, she held that the funds [R300 million] were diverted from social infrastructure to the funeral,” he said.
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