Mkhwebane considers appealing ruling setting aside Estina report

Public Protector Busisiwe Mkhwebane is considering appealing the Gauteng High Court in Pretoria’s decision to set aside her report on the Estina Dairy Farm Project, her office said on Monday evening.

The Democratic Alliance (DA) claimed victory after the High Court ruled that Mkhwebane had failed in her duties to investigate and report on the controversial project.

READ: Vrede dairy farm project: Gauteng High Court rules Public Protector’s report is unconstitutional

In 2018, the DA and the Council for the Advancement of the South African Constitution (Casac), applied to have Mkhwebane’s report on the project declared unconstitutional, reviewed and set aside.

On Monday, Judge Ronel Tolmay ruled in its favour. She reserved judgment on costs. 

In a statement on Monday evening, Mkhwebane said she was concerned about the ruling, adding that it might be interpreted as though the court condones maladministration attributed to the parties against whom the report’s findings were made.

She said she would also consider applying for direct access to the Constitutional Court regarding the ruling which she “disagrees with fundamentally”.

In the statement, Mkhwebane’s spokesperson Oupa Segalwe said she would be arguing the merits of her case at the apex court, rather than arguing them in the media.

READ: Vrede dairy farm: DA feels ‘vindicated’ by court ruling on Public Protector

Segalwe added that Mkhwebane was “astonished” by the ruling, given that, during arguments in October 2017, her counsel went to great lengths to make several issues regarding her investigation clear to the court.

“She could not investigate the allegations contained in the third complaint – received in May 2016 – as the investigation had virtually been wrapped up.

“She could not investigate issues that were in the public space such as the #GuptaLeaks because this office, in the State of Capture report, had already directed that a commission of inquiry be established to look into state capture claims. (The suggestion being made is that she should have launched a parallel investigation to look into what her office had already deferred to the commission – a view she finds illogical)…” Segwale said.

The office added that a provisional report was a working document, which can be equated to a draft judgment of the full bench, which is being circulated for comments by other judges.

Until it has been officially delivered, it is not a court judgment and further, it has no legal status, the office said.

ALSO READ: Many Estina dairy farm beneficiaries want the project to continue, Public Protector hears

Segalwe said the suggestion that the provisional report in the matter should have been merely rubber stamped and converted into a final report was “preposterous”. 

Mkhwebane said she found it curious that, Judge Tolmay, went back on her own word and rushed to hand down judgment in the matter after having written to her to say she would await the outcome of the Constitutional Court on the personal costs case before delivering the ruling.

Mkhwebane wants the court to order the DA to issue a statement

Mkhwebane had requested a declaration that the DA published and disseminated false and defamatory information claiming that she is on the payroll of the State Security Agency (SSA), is a spy and was appointed to perpetuate the capture of her office on behalf of former president Jacob Zuma.

“Adv. Mkhwebane wants the court to order the DA to issue a statement to be read during a press conference, declaring the allegations the party leveled against her as false,” Segwale said.

He said, in Mkhwebane’s view, the court’s stance that the documents required by the DA were irrelevant to the case at hand and were demonstrative of the fact that the party did not have a shred of evidence to substantiate its claims.

The DA has been ordered to file its answering affidavit in the main case within 15 days.

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