Mkhwebane challenges ‘unfair’ high court ruling
Judge’s damning findings are strong ammunition in the calls for public protector’s removal
Public protector Busisiwe Mkhwebane has launched a fightback against one of her detractors’ most powerful pieces of ammunition against her the scathing high court ruling that found she had “failed the people of this country” by turning a blind eye to irregularities in the Gupta-linked Estina dairy farm scam.
Mkhwebane is facing the prospect of a parliamentary inquiry into her fitness to hold office, and the damning ruling by judge Ronel Tolmay is very likely to be used as a strong basis to argue for her removal.
Tolmay not only found that the public protector’s conduct in her Estina investigation “constitutes gross negligence” but also ordered her to personally pay 7.5% of the legal costs of the successful legal challenges to that report.
Business, the DA and ANC alliance partner the SA Communist Party (SACP) have all called for Mkhwebane’s removal, as her credibility has been dented by the various adverse judicial findings. The SACP has also accused her of being the “hired gun” of the fightback against President Cyril Ramaphosa’s administration.
In an application filed earlier in September for leave to appeal against Tolmay’s ruling, Mkhwebane insists that the judgment was not fair to her.
She says Tolmay “erred in her extreme censure of the public protector because the circumstances of this case do not justify such extreme censure”, and strongly suggests that the judge went too far in chastising her “dereliction of duty”.
“The public protector, liked or disliked, must be treated fairly with due regard to all circumstances of the case,” her lawyers state.
They argue Tolmay “erred” by finding that Mkhwebane “acted inappropriately [and] in an egregious manner”, was derelict in her duties, was unable to “comprehend and accept the inappropriateness of her proposed remedial action” and that this “constitutes ineptitude”.
In May, Tolmay ruled that Mkhwebane’s Estina investigation report was unconstitutional and invalid, as the public protec
tor “did not address the major issues raised in the complaints” made about the project, “nor the numerous indications of irregularities”.
Mkhwebane’s first report on Estina — which was based on an edited version of a draft report compiled by Thuli Madonsela — sparked public outrage after it failed to make any findings against former Free State premier Ace Magashule and Mosebenzi Zwane, the MEC of agriculture at the time of the Estina project.
Magashule is now the secretary-general of the ANC, and analysts consider him a key cog in the anti-Ramaphosa faction because of the position he holds in the party, which is akin to that of a company CEO. Leaked Gupta e-mails strongly suggest both men had links to the project, R30m of which was allegedly used to fund a Gupta family wedding. They have denied any wrongdoing.
The public protector had not investigated alleged links between the project, which was intended to benefit black dairy farmers, and the Gupta family, on the basis of alleged financial and resource constraints. She is now conducting a second investigation into the project.
In July, the Constitutional Court slammed Mkhwebane for dishonest, “grossly unreasonable” and “flawed” conduct in her discredited SA Reserve Bank investigation, in which she proposed that the Bank’s monetary policy target be changed.
Her report was later overturned in its entirety and her conduct of the investigation — which included “secret” meetings with the State Security Agency and then president Jacob Zuma’s office — was slammed by both the high court and the Constitutional Court.
Tolmay, however, found that Mkhwebane’s conduct in her Estina investigation was in fact “far worse and more lamentable” than her conduct in her Reserve Bank investigation, and demonstrated her failure to execute her duties both in terms of the Constitution and the Public Protector Act.
“In this instance,” Tolmay wrote in her judgment, the public protector’s “dereliction of duty impacted on the rights of the poor and the vulnerable in society, the very people for whom her office was essentially created.
“They were deprived of their one chance to create a better life for themselves. The intended beneficiaries of the Estina project were disenfranchised by the very people who were supposed to uplift them.
“Yet the public protector turned a blind eye, did not consult with them and did not investigate the numerous irregularities that occurred properly and Mkhwebane objectively.”’ s lawyers argue there is “neither factual nor legal basis for these findings”.
MKHWEBANE IS FACING THE PROSPECT OF A PARLIAMENTARY INQUIRY INTO HER FITNESS TO HOLD OFFICE
R30m the amount allegedly used to fund the lavish Gupta family wedding at Sun City