Estina judgment against Mkhwebane limits her in her work, court hears

Judge Ronel Tolmay had exercised her judicial discretion too far when granting a personal cost order against Public Protector Busisiwe Mkhwebane, the North Gauteng High Court in Pretoria heard on Wednesday.

The public protector had argued her application for leave to appeal the scathing Estina dairy farm judgment, which declared Mkhwebane had failed the people of South Africa in the way she dealt with the investigation.

But Judge Tolmay stood by her decision.

“In this judgment, it was stated the situation, the facts are even worse because in this instance the poor and the vulnerable were the victims and that was one of the reasons that persuaded this court to exercise … that discretion,” she said.

Advocate Francois Botes, on behalf of the public protector, said this would limit Mkhwebane from carrying out her constitutional duties objectively should she be under the threat of a personal costs order.

“The impression that it has created … there is a message to the office of the PP that if she conducts herself in a robust manner in order to give effect to what is provided for in the Constitution … she might be [dealt] costs, and personal costs, under specific circumstances where her approach was bona fide [and] honest,” Botes added.

Tolmay, however, maintained the Constitutional Court had set out parameters for how and why these cost orders should be given.

“In this specific matter, if one looks at the whole context of the case and the whole judgment, the 180 poor farmers who should have reaped the rewards of this project were really those who did not even have the ability to approach a court if it wasn’t for other litigants taking up this issue, it would have died a silent death.

“The Office of the Public Protector was ultimately … to protect the poor and vulnerable and that is why this court exercised its discretion in the way it did, with the guidance and taking into consideration the principles set out by the Constitutional Court.”

In her judgment, Judge Tolmay ordered the public protector, in her official capacity, to pay 85% of the DA’s costs on an attorney scale and 85% of the costs of the Council for the Advancement of the South African Constitution (Casac).

Mkhwebane was ordered to personally pay 7.5% of the DA’s costs as well as 7.5% of Casac’s.

Botes argued the judge erred when she interpreted how the public protector should go about handling investigations and how she should exercise her discretion in this regard.

Mkhwebane maintained she took appropriate remedial action, including the institution of disciplinary action, against all implicated officials involved in the Vrede dairy farm project and the taking of “corrective measures”.

“It is difficult to understand on what basis in law the Public Protector can validly be found to have acted irrationally,” she said in court papers.

But Judge Tolmay said her judgment had not limited the discretion of the public protector.

She asked whether “there is really a possibility” that another court would come to a different conclusion, especially within the context of different interpretations of how the public protector should exercise discretion in investigations.

Judgment in the matter is expected on Friday.

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