Mkhwebane takes a lashing from Presidency DG

The Director-General in the Presidency pulled no punches in his description of remedial action recommended by the embattled public protector in papers before the court.

“Irrational, unconstitutional, not competent and unlawful” is how Director-General in the Presidency Cassius Lubisi has described remedial action put forth by Public Protector Busisiwe Mkhwebane, in yet another judicial challenge of one of her reports.

President Cyril Ramaphosa last month launched an application in the North Gauteng High Court, in Pretoria, to have the remedial action Mkhwebane ordered in her May 2019 report on the country’s horseracing industry – reviewed and set aside.

This with his application to have her report into his CR17 campaign for the ANC presidency reviewed and set aside, still pending before the same court.

In the latest action, Lubisi, in an affidavit confirmed by Ramaphosa, accused Mkhwebane of failing to “exercise her powers in a manner that is constitutionally sound” by trying to order the President to constitute a ministerial committee to establish a regulator for thoroughbred horseracing in South Africa.

The Public Protector in May 2019 released a report titled: ‘Allegations of Maladministration and Improper Conduct in connection with a Memorandum of Understanding entered into between the Gauteng Provincial Government and the Gauteng Horseracing Industry in 1997 which subsequently led to the Corporatisation of the Horseracing Industry’.

In her report, she found monies from the Horseracing Development Fund that were intended to be used for the benefit of grooms working in the sector, had not been used to this end and that this constituted maladministration.

“The Public Protector has the power to report on, and to direct remedial action, only in respect of conduct in state affairs which the Public Protector finds to be improper or to result in any impropriety or prejudice,” Lubisi said. “Having found that public funds allocated from the Horseracing Development Fund during the corporatization process for the benefit of grooms and for the upgrading of stabling facilities were not used for their intended purpose, the Public Protector is accordingly constrained to direct remedial action that is intended to remedy the improper conduct that she found and no more”.

He said the remedial action Mkhwebane had directed in this case “bears no relation to the improper conduct that the Public Protector has found to be substantiated”.

Among the remedial action she ordered was that the president establish a statutory body to regulate horse racing in South Africa, which would require passing suitable legislation and allocating a budget for the new body. She also ordered the Minister of Trade and Industry to lead the process of the establishment of the body, while premiers of every province were expected to “capacitate” this new body.

Lubisi accused Mkhwebane of having exceeded her powers and “unlawfully arrogated to herself the the executive authority to select how best to discharge the functions of the Cabinet”.

“The establishment of a statutory, regulatory body as directed by the Public Protector entails the introduction and passing of a bill to that end,” he said, “It is a fundamental principle of constitutional law that the legislative discretion vested in Parliament cannot be fettered in advance of its exercises. The remedial action directed by the Public Protector does exactly this. This is manifestly unlawful and unconstitutional”.

For more news your way, download The Citizen’s app for iOS and Android.