PUBLIC PROTECTOR'S ESTINA REPORT

Supreme Court of Appeal delivers another blow to Mkhwebane

By Greg Nicolson 30 June 2020
Caption
Public Protector Busisiwe Mkhwebane. (Photo: Felix Dlangamandla / Netwerk24)

Busisiwe Mkhwebane’s court woes continue after the Supreme Court of Appeal dismissed her application for leave to appeal against the judgment that overturned her report on the Estina dairy farm scandal, meaning the personal cost order against her stands.

The Supreme Court of Appeal (SCA) has dismissed Public Protector Busisiwe Mkhwebane’s application for leave to appeal against the judgment that overturned her Estina dairy farm report and ordered her to personally pay a portion of her opponent’s court costs.

“The application for leave to appeal is dismissed with costs on the grounds that there is no reasonable prospect of success in an appeal and there is no other compelling reason why an appeal should be heard,” ruled the court in a judgment dated 26 June, which was circulated on Monday.

Mkhwebane approached the SCA after the North Gauteng High Court denied her leave to appeal in December 2019.

The public protector’s 2018 report into the Estina dairy farm project was criticised for failing to investigate the role of senior Free State leaders such as Ace Magashule and Mosebenzi Zwane, who were implicated in diverting over R220-million intended to support emerging black families to Estina, a company associated with the Gupta family.

In May 2019, Judge Romel Tolmay set aside Mkhwebane’s report, finding “the failures and dereliction of duty by the public protector in the Estina matter are manifold”.

Citing the judgment against the public protector in the SA Reserve Bank case regarding Bankorp, Tolmay said her dereliction of duty was even more grievous in the Estina case as she failed the poor and vulnerable, those her office was designed to protect.

Tolmay ordered Mkhwebane to personally pay 7.5% of the legal costs for each of the applicants, the Democratic Alliance and the Council for the Advancement of the South African Constitution (Casac), which followed the personal costs order against the public protector in the Reserve Bank case.

Mkhwebane’s spokesperson Oupa Segalwe said the public protector had not received a copy of the SCA judgment by Monday afternoon and her lawyers were trying to ascertain why. 

“Her preliminary comment is that it is strange that the SCA would issue a judgment like that without informing her legal team that the matter was to be considered on the basis of the papers filed rather than a hearing,” said Segalwe. 

“She was still awaiting the date of hearing.” 

Roy Jankielsohn, leader of the DA in the Free State legislature, said the SCA ruling further highlighted Mkhwebane’s “inability to interpret the rule of law”.

Mkhwebane has committed to continue investigating the Estina scandal, this time including the roles of senior politicians, which she has been accused of ordering staff to exclude in the first report.

The public protector’s initial report said the dairy farm project featured “gross negligence” and she recommended Magashule, Free State premier at the time, to act against the officials involved.

In her previous appeal, the public protector argued that she should have the discretion to investigate who she wants, that her office’s resources were constrained and a punitive cost order against her could inhibit her ability to continue to fulfil her duties. 

“The public protector failed the people of this country in the way she dealt with the investigation of the Estina dairy project.”

“There is no longer any reason for the PP not to finalise the investigation report and release her findings on the Vrede Dairy Project that include issues relating to both the ongoing side-lining of the rightful beneficiaries and the role of politicians in the malfeasance that took place there,” said Jankielsohn.

“The PP’s continuous legal attempts to prevent further investigation and findings on this project raise serious questions about her motives and her ability to take objective decisions in this regard,” he added.

Casac’s Lawson Naidoo told Eyewitness News, “The High Court found great frailties in the public protector’s report and therefore set it aside as being irrational and therefore unconstitutional and we’ve always believed that there was no basis from which the public protector could lodge an appeal.”

Mkhwebane can still petition the Constitutional Court to appeal the case. The court recently overturned a personal costs order against her when she tried to appeal the interdict granted to Public Enterprises Minister Pravin Gordhan to suspend the disciplinary action she recommended against him while he takes her report on his time at SARS on review.

In that case, the court found the lower court had no justification for imposing the personal cost order against Mkhwebane as no party in the case had made such a request. 

Both the DA and Casac in the Estina case asked the court to lump Mkhwebane with some of their costs.

Her inability to comprehend and accept the inappropriateness of her proposed remedial action constitutes ineptitude. As was stated in the Reserve Bank judgment, a higher duty is placed on her due to her great importance in our democracy,” said Tolmay in her decision on the personal cost order against Mkhwebane.

“The public protector failed the people of this country in the way she dealt with the investigation of the Estina dairy project.”

Steps have been instituted in Parliament to remove Mkhwebane from office but were first delayed by the legislature focusing on establishing the rule to remove a Chapter 9 leader. The process has been further delayed by Covid-19. DM

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