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Nkwinti launches last-minute court bid to prevent release of PP report

Just a few hours before Public Protector advocate Busisiwe Mkhwebane is scheduled to publicly release investigation reports, Water and Sanitation Minister Gugile Nkwinti will be in court to prevent the release of a report that finds he abused his position as minister.

Nkwinti first approached the Pretoria high court on Friday night, after normal court hours. Oupa Segalwe, the spokesperson for the office of the public protector on Sunday confirmed that the case would be argued on Monday morning.

Segalwe was unable however, to confirm which reports Mkhwebane would be releasing on Monday or whether the report on Nkwinti is one of them. In his court papers, Nkwinti said there was “a strong likelihood” that it was.

The report Nkwinti wants to be kept confidential — pending a full court challenge — relates to an investigation by the public protector into the 2011 acquisition of the Bekenvlei farm in Limpopo when he was minister of land and rural development.

In February 2017, the Sunday Times reported that Nkwinti had referred a friend, Errol Velile Present, to an official in his department, who then facilitated the handover over of a farm worth R97-million to Present and a business partner to manage.

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After an investigation, a draft Deloitte report in 2016 implicated Nkwinti, along with other officials, and suggested he be charged under the Prevention and Combating of Corrupt Activities Act. But the final Deloitte report contained no adverse findings against the minister.

The Sunday Times article led to a complaint by Democratic Alliance MP Thomas Walters, as well as request by Nkwinti himself to the public protector to investigate.

But Mkhwebane did not got to hear his side of the story, after she “unfairly” and “unreasonably” refused to give him more time to answer, Nkwinti said.

“The final report contains a finding that i have violated paragraphs 3.2(c) and 3.2(e) of the Executive Ethics Code. These findings are not correct and have been made without granting me the opportunity to submit a response,” Nkwinti said in his affidavit.

Paragraphs 3.2(c) and (e) of the code say that a member of the executive may not “act in a way that is inconsistent with their position” or “use information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties”.

Nkwinti said Mkhwebane had given him only 18 days to respond to her. Her refusal to give him an extension was “extremely unreasonable considering the fact that she approached me for the first time approximately 26 months after I requested her to conduct an investigation”.

He said he would suffer harm to his reputation if the report was released.

But Mkhwebane said preventing the publication of the report would mean that she would not be giving effect to her constitutional mandate.

She said that, by law, the public protector may only keep reports confidential in exceptional circumstances, such as if it would prejudice any other public protector investigation or undermine the public peace or security of the Republic.

Nkwinti could always take the case on review after the release of the report, she said.

She also said that granting extensions was in her discretion and that Nkwinti waited until close to the deadline before he applied for an extension: “It is absurd that it took the applicant 14 days to make up his mind that he needs an extension,” she said.

Nkwinti’s spokesman Sputnik Ratau said the minister would be guided by the judge’s decision.

This is a developing story and will be updated as more details emerge. 

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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