Mkhwebane to petition the SCA after leave to appeal Estina judgment denied

Public Protector Busisiwe Mkhwebane will approach the Supreme Court of Appeal (SCA) to challenge the decision of the High Court in Pretoria which denied her leave to appeal a judgment against her, which included a cost order.

PP @AdvBMkhwebane will soon be petitioning the Supreme Court of Appeal to challenge the decision of the high court. https://t.co/oTWnngiZ69

— Public Protector SA (@PublicProtector) December 13, 2019

The High Court in Pretoria on Friday denied Mkhwebane’s leave to appeal the scathing Estina dairy farm judgment against her.

The judgment, handed down on May 20 by Judge Ronel Tolmay, declared that Mkhwebane had failed the people of South Africa in the way she dealt with the investigation.

Earlier this week, the public protector had argued her application for leave to appeal the scathing judgment, arguing that Judge Tolmay had shown overreach of her judicial discretion when granting a personal costs order against Mkhwebane.

Advocate Francois Botes, on behalf of the public protector, said the costs order would limit Mkhwebane from carrying out her constitutional duties objectively.

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”.

READ MORE: Estina judgment against Mkhwebane limits her in her work, court hears

Mkhwebane was ordered to personally pay 7.5% of the costs of the Democratic Alliance (DA) – which challenged her report legally along with the Council for the Advancement of the South African Constitution (Casac), with the public protector also ordered to pay 7.5% of Casac’s costs.

The DA has welcomed the court’s denial of Mkhwebane’s leave to appeal the judgment.

DA MPL in the Free State Dr Roy Jankielsohn noted that in her initial judgment, Tolmay indicated that the public protector contravened the Public Protector Act and the Constitution, “the very instruments that should have been used to investigate, expose, and remediate the bureaucratic and political malfeasance in the Vrede Dairy Project”.

“It is for this reason that Judge Tolmay declared that the [public protector] report regarding the Vrede Dairy Project is ‘set aside and declared unlawful, unconstitutional and invalid’,” Jankielsohn said.

Jankielsohn said the court’s denial of Mkhwebane’s application “is a victory for the 80 beneficiaries of the project and the people of the Free State who have already been waiting for seven years for redress and justice”.

“The judgment will ensure that further costs are not expended by the public protector, who cited her limited resources as a reason for the restricted initial investigation, on further unnecessary legal fees. She must now carry out a comprehensive investigation and ensure that her recommendations are in line with her role to ensure justice for the marginalised people in our society and remediate malfeasance in government.”

(Compiled by Makhosandile Zulu. Additional reporting, News24Wire)

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