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Mbina-Mthembu v Public Protector (208/2018) [2019] ZAECBHC 4

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Mbina-Mthembu v Public Protector (208/2018) [2019] ZAECBHC 4

11th March 2019

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[1]        When the founding father of South Africa’s democracy, Mr Nelson Rolihlahla Mandela, died on 5 December 2013 at the age of 94 years, hasty arrangements were made for his State funeral scheduled for ten days after his death. He was to be buried at his home in Qunu near Mthatha in the Eastern Cape province. Planning for and the implementation of the planning of the funeral involved the national, provincial and local spheres of government. On the provincial level, the Eastern Cape provincial government (the provincial government) was centrally involved, while on the local level, the King Sabata Dalindyebo Local Municipality (the KSD Municipality) and the O R Tambo District Municipality (the ORT Municipality) had roles to play. Little prior planning of any significance was undertaken, even though Mr Mandela had been ill for some time.

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[2]        In order to meet the exigencies of the situation, the provincial government decided to make available R300 million to fund the funeral. This amount had been allocated to the Eastern Cape Development Corporation (the ECDC)[1] and ring-fenced for the ECDC to use for social infrastructure development. The ECDC was given the function of paymaster and by the time the funeral had been concluded and suppliers of goods and services had been paid, it had disbursed R35 963 889. The provincial government’s thinking when it embarked on this arrangement was that it would re-imburse the ECDC in due course.

[3]        A number of complaints were made to the Public Protector that maladministration had occurred during the process. She investigated the complaints and produced a report entitled ‘Report of the Public Protector on an Investigation into Allegations of Misappropriation of Public Funds, Improper Conduct and Maladministration by the Eastern Cape Provincial Government and Other Organs of State in Connection with the Expenditure Incurred in Preparation for the Funeral of the Late Former President Nelson Rolihlahla Mandela, “Aah! Dalibhunga”’.

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[4]        The report contained four adverse findings against the applicant, Ms Nomdakazana Mbina-Mthembu, who was, at the time, the head of the provincial treasury in the provincial government. The remedial action of relevance to this matter that was directed by the Public Protector was that the ‘Provincial Treasury of the Eastern Cape conduct an investigation into the financial misconduct of Ms Mbina-Mthembu referred to in this report, in terms of Treasury Regulation 4.1.3, and to take the appropriate action’.

[5]        Ms Mbina-Mthembu has applied for an order in the following terms:

‘reviewing and setting aside Report No 29 of 2017/2018 titled: “MANDELA FUNERAL: REPORT OF THE PUBLIC PROTECTOR ON AN INVESTIGATION INTO ALLEGATIONS OF MISAPPROPRIATION OF PUBLIC FUNDS, IMPROPER CONDUCT AND MALADMINISTRATION BY THE EASTERN CAPE PROVINCIAL GOVERNMENT AND OTHER ORGANS OF STATE IN CONNECTION WITH EXPENDITURE INCURRED IN PREPARATION FOR THE FUNERAL OF PRESIDENT NELSON ROLIHLAHLA MANDELA” which was released by the respondent on or about 4 December 2017, either in whole or to the extent that such report makes certain findings against or concerning the applicant and/or the Eastern Cape Provincial Planning and Treasury and setting aside certain remedial action taken by the respondent against the applicant as contained in the said report.’

[6]        It was accepted by Mr Ntsaluba who, together with Mr Mapoma, appeared for Ms Mbina-Mthembu, that if the application was to succeed, Ms Mbina-Mthembu was not entitled to the setting aside of the whole report: she would only be entitled to the setting aside of the adverse findings made in respect of her and the remedial action ordered against her.

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