‘Astonished’ Mkhwebane to consider appealing to Concourt after blow in Estina case

In a statement on Monday, Public Protector Adv. Busisiwe Mkhwebane welcomed the Western Cape High Court dismissing with costs an application by the Democratic Alliance (DA) for the court to compel her to produce, for inspection, a copy of her application for the position she previously held at the State Security Agency (SSA), and confirmation of her acceptance of the offer for the job.

The DA had published and disseminated allegations that she was on the payroll of the SSA, was a spy and was appointed to perpetuate the capture of her office on behalf of former president Jacob Zuma.

“Adv. Mkhwebane wants the court to order the DA to issue a statement to be read during a press conference, declaring the allegations the party levelled against her as false,” said her spokesperson Oupa Segalwe.

“In Adv. Mkhwebane’s view, the court’s stance that the documents required by the DA are irrelevant to the case at hand, is demonstrative of the fact that the party does not have a shred of evidence to substantiate its claims. The DA has been ordered to file its answering affidavit in the main case within 15 days.”

Mkhwebane was, however, less happy about her report on the Estina Dairy Farm being overturned after the High Court in Pretoria on Monday declared her report on the Vrede dairy project unconstitutional and invalid. 

The court application had also been brought by the DA, as well as the Council for the Advancement of the SA Constitution (Casac).

The DA argued that Mkhwebane’s investigative report of the farm project was a “whitewash”, as implicated ANC politicians were never interviewed and thus escaped scrutiny.

At least R200 million in public funds meant for emerging black farmers in Vrede allegedly flowed to Estina, a company linked to the controversial Gupta family.

Some of the money was allegedly used to pay for the Guptas’ lavish family wedding at Sun City resort in 2013.

Segalwe responded: “Adv. Mkhwebane is still considering the option to appeal or apply for direct access to the Constitutional Court regarding Monday’s ruling of the North Gauteng High Court on her investigation into the Estina Dairy Farm Project, which ruling she disagrees with fundamentally.

“She is concerned over among other things that, in setting aside the entire report, the ruling might be interpreted as though the court condones the maladministration attributed to the parties against whom adverse findings were made.”

Segalwe said that rather than arguing the merits of her case in the media, Mkhwebane would express herself at the apex court should direct access be granted.

“However, she wishes to register her astonishment at the ruling, given that, during arguments last October, her counsel went to great lengths to make it patently clear to the high court that:

“She could not investigate the allegations contained in the third complaint – received in May 2016 – as the investigation had virtually been wrapped up;

“She could not investigate issues that were in the public space such as the #GuptaLeaks because this office, in the State of Capture report, had already directed that a Commission of Inquiry be established to look into state capture claims. (The suggestion being made is that she should have launched a parallel investigation to look into what her office had already deferred to the Commission – a view she finds illogical);

“A provisional report is a working document, which can be equated to a draft judgment of the full bench, which is being circulated for comments by other judges. Until it has been officially delivered, it is not court judgment. Further, it has no legal status. (The suggestion that the provisional report in the matter should have been merely rubberstamped and converted into a final report is preposterous).

“With respect, Adv. Mkhwebane finds it curious that, the judge, Hon. Ronel Tolmay, went back on her own word and rushed to hand down judgment in the matter after having written to her to say she would await the outcome of the Constitutional Court on the personal costs case before delivering the ruling. The initial approach from which the court has now departed was plausible because the judgment the court has now delivered relies on the appealed judgment whose outcome the Constitutional Court is yet to deliver.

“Although the issue before the Constitutional Court is primarily about whether or not it is correct for the court to order the head of chapter 9 institution to pay cost of litigation from personal pocket, cost orders are inextricably linked with the merits of the case and incapable of consideration independently and outside of the merits/facts of the case.”

(Edited by Charles Cilliers)

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