Public Protector Busisiwe Mkhwebane failed the people of South Africa in the manner in which she dealt with the investigation of the Estina dairy farm project, the Gauteng High Court in Pretoria ruled on Thursday.
The court ordered Mkhwebane to personally pay some of the legal costs in the Estina dairy farm matter.
Judge Ronel Tolmay ordered that the Public Protector, in her official capacity, pay 85% of the DA’s costs on an attorney scale and 85% of the costs of Council for the Advancement of the South African Constitution (Casac).
Mkhwebane was ordered to personally pay 7.5% of the costs of the DA as well as 7.5% of Casac’s costs.
In her ruling, Tolmay said it was of “great concern” and a factor that she took into consideration when she considered the appropriate costs order that the Public Protector made use of two different sets of counsel.
“These appointments must have caused an enormous escalation of legal costs for her office,” she said.
Tolmay said although the two applications were brought by two different entities, they were based on the same facts and dealt with the same project.
“Accordingly, they also relied on the same legal principles. One set of angles of her very competent legal teams could easily have dealt with both matters,” Tolmay said.
She said the Public Protector’s decision showed “total disregard for the taxpayers who will have to foot the bill and flies in the face of her complaint about how financial constraints limited her ability to properly investigate…”
Tolmay added that she took into account that the impact on the Public Protector personally may be too harsh, adding that in this instance, there were two applications involved and therefore the court adjusted the personal costs to a lower percentage for each applicant.
“The failures and dereliction of duty by the Public Protector in the Estina matter are manifold. They speak to her failure to execute her duties in terms of the Constitution and the Public Protector Act.
Public Protector’s failures
“In my view, her conduct in this matter is far worse and more lamentable, than that set out in the Reserve Bank matter.”
She said in the Reserve Bank matter, the Public Protector’s “failures” impacted on the institutions that have resources to fend for themselves.
But in this instance Mkhwebane’s “dereliction of her duty impacted on the rights of the poor and vulnerable 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.”
Tolmay said the intended beneficiaries of the Estina dairy farm project were disenfranchised by the people who were supposed to uplift them.
She said the Public Protector turned a “blind eye” when she did not consult with them and did not investigate the numerous irregularities.
“She even completely failed to investigate the third complaint,” Tolmay said.
Public Protector spokesperson Oupa Segalwe told reporters moments after the ruling that the Public Protector was disappointed.
Segalwe said the Public Protector would be appealing the judgment and added that the Public Protector conducted her investigations in good faith.
“This particular investigation relating to Estina was completed in 2015, that is a year before advocate Mkhwebane came into office and at the time there was even a provisional report. If you study that provisional report which the Public Protector has since published on her office website, you will see that there were no findings… against any politician,” he said.
The application was lodged by the DA and Casac.
In the application, the DA’s advocate Janice Bleazard argued that Mkhwebane failed to investigate a complaint lodged by the party’s Roy Jankielsohn.
Between 2013 and 2016, Jankielsohn submitted three complaints to the Public Protector, calling on the role of the provincial government and then Free State premier Ace Magashule to be probed.
‘Gross negligence’ and irregularities
However, when Mkhwebane assumed office in October 2016, she inherited a provisional report prepared by her predecessor, Thuli Madonsela.
In 2018, Mkhwebane quietly released the report, highlighting procurement irregularities, “gross negligence” and maladministration related to the controversial project.
As remedial action, she recommended that Magashule “initiate and institute disciplinary action against all implicated officials involved in the Vrede dairy project”.
The DA felt Mkhwebane was not “prudent” in her investigation and that senior politicians implicated in the project were not interviewed.
Casac argued that the report did not include findings relating to the “high-level politicians that played a central role in the project”.
One hundred black emerging farmers were promised five cows each as part of the empowerment scheme, but never received them.
Gifted to Estina in 2013 under a free 99-year lease by the provincial agriculture department, the farm has been one of the most scandalous transactions between the Guptas and a government entity.
The #GuptaLeaks revealed last year how at least R30m paid to the Guptas via the farm ended up funding the family’s lavish Sun City wedding in 2013.
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