The public protector’s finding that former Eastern Cape director-general Marion Mbina-Mthembu had conducted herself improperly in the disbursement of funds for the funeral of former president Nelson Mandela has been upheld by the high court.
A furious Mbina-Mthembu took public protector (PP) Busisiwe Mkhwebane to court to review and set aside her damning report that followed the PP’s investigation into allegations of maladministration and abuse of public funds for the Mandela funeral. She said Mkhwebane was clearly biased against her and her findings irrational.
Mkhwebane found the diversion of over R300m from the Eastern Cape Development Corporation’s (ECDC) fund intended for social infrastructure development towards paying for Mandela’s funeral was improper.
She found Mbina-Mthembu was wrong in her belief that Treasury regulations allowed for the use of the ECDC money for this purpose. Even more damning was her finding that Mbina-Mthembu had “misdirected” the provincial Exco, that her proposal was “irrational and unlawful”, that it resulted in an irrational decision by the Exco that “culminated in expenditure by the ECDC that was unauthorised” and that Ms Mbina-Mthembu’s “conduct was improper and constituted maladministration”.
Judge Clive Plasket, with acting judge Victor Nqumse agreeing, ruled the public protector was entirely correct in arriving at the conclusion that Mbina-Mthembu’s advice to Exco was erroneous and that the diversion of the funds, in reliance on that advice, was unlawful.
“The public protector’s key finding – that the scheme for the diversion of the funds was unlawful – was legally correct. The contention that she committed an error of law is thus untenable,” the judges found.
The subsequent disbursement of these funds which had been incorrectly diverted was also unlawful.
Two examples cited were about R330,000 paid by the ECDC to McDonalds and R400,000 to Kentucky Fried Chicken in Mthatha. “Not only were these service providers not on the database of service providers but payments were made despite the absence of tax clearance certificates and proof of delivery.” Plasket described the procurement process as a “free for all” where even the unlawful checks and balances put in place by Mbina-Mthembu were ignored.
The judges rejected Mbina-Mthembu’s allegation that the PP had been biased against her. “It is clear that the procurement process did not meet the requirements of being fair, equitable, transparent, competitive and cost-effective.”
The judges also upheld the PP’s finding that the accidental transfer of some R250,000 into the personal cheque account of premier Phumulo Masualle was improper and constituted maladministration on Mbina-Mthembu’s part. They said that she had herself acknowledged it was an irregularity.
They found Mbina-Mthembu had failed to establish any grounds of review. They dismissed her application with costs. – DDR..