Mkhwebane to appeal costs order over Estina report

Oupa Segalwe, spokesperson for the public protector, says she will seek to appeal the latest costs order against her.

More woes for the public protector came in the form of a ruling of the Gauteng High Court in Pretoria on Thursday, which found that her office as well as she personally are responsible for some of the legal costs in her personal capacity in the Vrede dairy farm matter.

Judge Ronel Tolmay ordered that the Public Protector’s office must pay 85% of the costs of DA on an attorney and client scale. It must also pay 85% of the costs of Council for the Advancement of the South African Constitution (Casac).

In a scathing ruling, judge Ronel Tolmay said the Public Protector failed the people of the country in the way she dealt with her investigation in the Estina dairy farm matter.

She said Mkhwebane failed completely to institute her constitutional duties but instead turned a “blind eye” when she failed to investigate the third complainant. Tolmay said beneficiaries of the Estina dairy farm were deprived of their one chance to create a better life for themselves.

She also said Mkhwebane’s conduct surrounding the report was “more lamentable” than that regarding her report involving the Reserve Bank and Absa, which was also set aside with costs.

In May this year, Tolmay found that advocate Busisiwe Mkhwebane’s report was unconstitutional and invalid and set it aside.

The court found court found that she failed in her duties to investigate and report on the Free State project and reserved judgment on costs.

The application was lodged by the DA and Council for the Advancement of the South African Constitution (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.

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 that Mkhwebane was not “prudent” in her investigation and that senior politicians implicated in the project were not interviewed.

The DA argued that when she assumed office, Mkhwebane was required to conduct a preliminary investigation into the merits of Jankielsohn’s complaint or refer the matter to another appropriate investigative authority.

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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