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09 May 2019 14:37
Public Protector Busisiwe Mkhwebane. (Phill Magakoe/Gallo)
The high court has interdicted the release of a report by Public Protector Busisiwe Mkhwebane that found that the minister of water and sanitation, Gugile Nkwinti, abused his powers when he was the minister of rural development and land reform.
This prevents any action against him until the dispute has been fully argued in court.
The interdict is the first of its kind. Although reports of the public protector have been taken to court on review after their release, the public protector’s office said it could not recall a court ever intervening beforehand.
When former president Jacob Zuma tried to interdict the release of former public protector Thuli Madonsela’s ‘State of Capture’ report, he U-turned at the last minute, and the report was released.
The Nkwinti report is already in the public domain but Nkwinti’s attorney, Mxolisi Myambo, said the judgment would prevent the implementation of the remedial action directed in the report.
This included that President Cyril Ramaphosa take “appropriate action against minister Nkwinti”.
The report found that Nkwinti abused his position as minister to benefit his friend, Errol Velile Present. In 2011, the rural development and land reform department bought a farm worth R97-million and, after a referral from Nkwinti, handed its management to Present and a business partner. The two ran the Bekendvlei farm into the ground and were ultimately evicted.
Because the two were “acquaintances”, Nkwinti had violated the executive ethics code and the Constitution, said public protector Busisiwe Mkhwebane. However, she cleared the minister of having taken a R2-million bribe, saying there was no evidence to support this claim.
Nkwinti went to court urgently just before the report was due to be publicly released, because he said he had never responded to the allegations against him. Mkhwebane had given him 18 days to respond, but two requests for extensions went unanswered — until the day the report was signed off, when the requests were refused.
Pretoria high court Judge Cassim Sardiwalla did not give reasons for his order. But in court, Nkwinti’s counsel, Ernst van Graan SC, argued that by only giving Nkwinti 18 days — after investigating for more than two years — Mkhwebane had in effect denied the minister an opportunity to respond. He said Mkhwebane was unable to answer how a little more time would prejudice the process.
The spokesperson for the public protector, Oupa Segalwe, said they were “puzzled” by the order as the report had already been distributed to parties and published in the media. “This renders the judgment rather academic,” he said.
Nkwinti must now launch a full review application of the report within a month.
The story took a twist when it emerged in court papers that the person who implemented the Bekendvlei acquisition — then deputy director general of the land department Vussy Mahlangu — was now the chief executive at the office of the public protector. Before he was appointed to the public protector’s office, Mahlangu told her that he acted on “ministerial instruction” and so had “prioritised” the deal.
Mkhwebane’s office said there was no conflict of interest on her part in relying on Mahlangu’s evidence.
Segalwe said: “The public protector had to be thorough in her investigation. This had to encompass her consideration of the evidence that Mr Mahlangu shared with the investigator long before his employment.”
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