Public Protector Busisiwe Mkhwebane File picture: Mike Hutchings/Reuters
Public Protector Busisiwe Mkhwebane File picture: Mike Hutchings/Reuters

Public Protector takes Estina matter to Supreme Court

By Zintle Mahlati Time of article published Dec 14, 2019

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Johannesburg - Public Protector Busisiwe Mkhwebane is taking her fight to the Supreme Court of Appeal (SCA) following her loss of an application for leave to appeal the Estina Dairy Farm report judgment which left her with a 7.5% cost order.

Friday’s judgment was another blow for Mkhwebane as Judge Ronel Tolmay explained her appeal did not have merit and was unlikely to succeed at the Supreme Court of Appeal.

This was after Tolamy’s May judgment which set aside Mkhwebane’s Estina report and labelled it unconstitutional and unlawful.

Mkhwebane was widely criticised for her handling of the investigation into the swindling of money meant to uplift black emerging farmers in the Free State.

Her report was released in 2017 and the DA successfully approached the High Court to set the report aside.

The Vrede Dairy Farm project was established by the Free State government to help uplift underprivileged farmers in the area.

The project was allocated R220 million and only R2m was spent on the farm. None of the people who were destined to benefit received anything from the project.

The tender for the project was awarded to a company called Estina, which had links to the controversial Gupta family.

The company was awarded the tender even though it had no history of running similar projects.

It was reported how millions of rand that were paid to the Estina bank account were quickly paid out to various bank accounts belonging to Gupta-owned companies.

When arguing for leave to appeal, Mkhwebane’s legal representative advocate Francois Botes SC argued the court had misinterpreted the public protector’s discretion in its ruling which resulted in an erred judgment.

Tolmay explained on Friday Mkhwebane’s legal team had failed to convince the court there was a chance the Supreme Court of Appeal would come to a different conclusion.

“After considering the judgment and the merits, I am of the view that none of the requirements of section 71 of the Act were met and, therefore, leave to appeal should not be granted.

“During arguments, my attention was drawn to the fact that the public protector, on instructions from Parliament, is investigating the matter again, which in fact renders an appeal on the matter mute.”

Tolmay also concluded the costs order was crucial to the court’s work and the SCA would unlikely overturn it.

“Regarding the issue of costs, this court has a discretion and it is unlikely that a court of appeal would interfere in this discretion. All the concerns raised by the public protector were considered as well as the impact of the personal cost order against her,” she said.

“The application to appeal on both the judgment on merit as well as the costs are dismissed with costs,” she ruled.

The DA welcomed the ruling on Friday.

“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 her recommendations are in line with her role to ensure justice for the marginalised people,” the party said in a statement.

Mkhwebane tweeted she was “not surprised” by Tolmay’s ruling, while her office indicated she would petition the SCA directly.

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