Public Protector to fork out for Estina case after losing yet another court battle
Pretoria - Public Protector Advocate Busisiwe Mkhwebane suffered another huge financial loss when the North Gauteng High Court ordered her to pay personal costs for her failure to investigate the role of former Free State premier Ace Magashule in the Estina Dairy Farm project.
This was the ruling by Judge Ronel Tolmay in the North Gauteng High Court in Pretoria after she ordered Mkhwebane to pay 7.5% each for the costs of the DA and Council for the Advance of South African Constitution (Casac).
DA and Casac applied to the High Court to set aside Mkhwebane's report on the Estina Dairy Farm and their primary complaint was that Mkhwebane had failed to investigate the role of Magashule and former mineral resources minister Mosebenzi Zwane.
Both parties argued that Mkhwebane should be held personally liable for the costs. In May, Tolmay reserved judgment on costs pending a Constitutional Court ruling on similar applications against Mkhwebane by Absa and the South African Reserve Bank.
Last month, the ConCourt ordered Mkhwebane to pay 15% of the Absa/Reserve Banks costs.
Tolmay relied heavily on the ruling of the ConCourt to order personal costs against Mkhwebane. She, however, found that Mkhwebane's transgressions in the Estina Dairy Farm investigations were far worse than those set out in the Reserve Bank matter.
“At least her failures at the Reserve Bank impacted on institutions that have the resources to fend for themselves. In this instance (Estina Dairy Farm) her dereliction of duty impacted on the rights of the poor and vulnerable in society, the very people for whom her office was essentially created.
“They were deprived of their one chance to create a better life for themselves. The intended beneficiaries of the Estina project were disenfranchised by the very people who were supposed to uplift them.
“Yet the Public Protector turned a blind eye, did not consult with them and did not investigate the numerous irregularities that allegedly occurred properly and objectively,” Tolmay said.
She reiterated that Mkhwebane failed to investigate a complaint against Magashule and Zwane.
“The Public Protector failed the people of this country in the way she dealt with the investigations of the Estina Dairy Project,” Judge Tolmay said.
In her reaction, Mkhwebane's spokesperson Oupa Segalwe said that Mkhwebane was considering appealing the ruling including the personal costs findings.
He also said that Mkhwebane was disappointed that the judge had failed section 5(3) of the Public Protector Act which gives her immunity against personal costs.