Get more Mail & Guardian
Subscribe or Login

High court hears minister’s urgent application to halt release of PP report

The public protector had not explained why giving Minister Gugile Nkwinti a bit more time to respond to allegations against him would prejudice her process, the high court heard on Monday.

The water and sanitation minister was making argument after he urgently approached the Pretoria high court on Friday night, after the court’s operating hours. Court papers were exchanged over the weekend and argument was heard on Monday morning by Judge Cassim Sardiwalla.

Meanwhile a press conference to publicly release investigation reports, scheduled for Monday at midday, was postponed in a statement by Mkhwebane’s office.

The report Nkwinti wants to halt — 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. The leaked report finds that he abused his position as minister, which he disputes.

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.

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 content of the report has already been revealed in the media, but president Cyril Ramaphosa – who has been directed by the public protector to take remedial action – told the court he would abide by its order. If the interdict is granted, it would also mean that the court agreed that Mkhwebane acted unlawfully when she refused to grant Nkwinti more time to respond.

Nkwinti’s counsel Ernst Van Graan SC told the court that the Public Protector Act specifically required — using the word “shall” — that implicated people be given an opportunity to respond. Where the implication came as a result of evidence collected by the public protector, she had to allow the implicated person to appear before her to give his own evidence.

Both these opportunities had been denied, said Van Graan. He said Nkwinti had given good reasons for needing an extension – including that it was election time, he had diary pressures and he needed to access historical documents. He had also given specific dates on which he was free to meet the public protector. She never even officially responded to his requests, he said, until the same day the report was issued.

The reason that she gave for refusing the extension was that the delay would prejudice the complainant, said Van Graan. But it was not Nkwinti’s fault the complainant had waited so long, as it had taken two years and two months for Mkhwebane to get to the point where she wrote to Nkwinti saying he was implicated, said Van Graan.

But counsel for the Public Protector, Bright Shabalala, said Nkwinti was afforded an opportunity to respond — 18 days was long enough — and the act did not require Mkhwebane to grant extensions. He said the minister’s reasons for requesting an extension were not good enough, for example citing public holidays showed that the minister was “chilling”.

The fact that the minister was telling the public protector what days he was available showed that he was trying to dictate to her what process she should follow and the public protector was entitled to say “enough is enough,” said Shabalala.

Asked by Sardiwalla what prejudice the public protector’s process would have suffered if she had given the extension, Shabalala said it would set a bad precedent. But Van Graan said Shabalala had not answered what prejudice would have been suffered in this specific investigation.

Sardiwalla said he would make an order either later on Monday or on Tuesday. 

Subscribe to the M&G

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them.

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

Related stories


Subscribers only

Petro states: What happens when 30% of your national budget...

As the demand for oil shrinks and prices collapse, Africa’s petro states — the likes of Angola, Nigeria, Egypt and Equatorial Guinea — will be left with massive holes in their budgets

More top stories

Petro states: What happens when 30% of your national budget...

As the demand for oil shrinks and prices collapse, Africa’s petro states — the likes of Angola, Nigeria, Egypt and Equatorial Guinea — will be left with massive holes in their budgets

Europe, Asia rob West Africa of fish

Greenpeace Africa reports that the fishmeal and fish oil industry is ‘robbing the Gambia, Mauritania and Senegal of livelihoods and food’

Covid jab tech helps fight malaria

An estimated two-thirds of malaria deaths are among children under the age of five, most of them in Africa.

Learners moving to other provinces puts education departments under pressure

Gauteng and the Western Cape struggle to put children in class, but Limpopo and the Eastern Cape are closing schools as enrolment plummets

press releases

Loading latest Press Releases…