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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. 

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

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