Public Protector advocate Busisiwe Mkhwebane. File photo: Henk Kruger/African News Agency (ANA).

Johannesburg - Public Protector Adv. Busisiwe Mkhwebane is considering appealing a North Gauteng High Court ruling on her Vrede Dairy Project report, her office confirmed on Monday. 

The court earlier declared her report unlawful, unconstitutional and invalid, with Judge Ronel Tolmay setting it aside. 

Monday's judgment followed an application by the DA and the Council for the Advancement of the South African Constitution (Casac) to have the report overturned.

The court application related to the investigation and reporting by Mkhwebane on the Free State’s department of Agriculture Vrede Integrated Dairy Project.

Mkhwebane in a statement said she was still considering the option to "appeal or apply for direct access to the Constitutional Court regarding Monday’s ruling... which 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.

"Rather than arguing the merits of her case in the media, Adv. Mkhwebane will express herself at the apex court should direct access be granted."

Mkhwebane added that she found it strange that Tolmay "went back on her own word and rushed to hand down judgment in the matter" after she'd allegedly indicated that she would await the outcome of the Constitutional Court on the personal costs case before delivering her ruling. 

The public protector approached the Concourt to overturn a high court order for her to personally pay 15% of the Reserve Bank’s legal costs in the Bankcorp matter. The remainder was to be paid by her office.

"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 ConCourt 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 [are] incapable of consideration independently and outside of the merits/facts of the case".

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