The Public Protector, advocate Busisiwe Mkhwebane, is considering appealing the Pretoria high court’s decision to set aside her report on the Vrede dairy farm project, her office said on Monday.
On Monday, Judge Ronel Tolmay declared Mkhwebane’s report ‘unconstitutional’ and ‘invalid’, ruling in favour of the Democratic Alliance and the Council for the Advancement of the South African Constitution (Casac). Tolmay reserved judgment on costs.
In 2018, the DA and Casac applied to have Mkhwebane’s report on the project declared unconstitutional, reviewed and set aside.
One hundred black emerging farmers were promised five cows each as part of the empowerment scheme, but did not receive them.
Gifted to Estina in 2013 under a free 99-year lease by the Free State agriculture department, the farm is one of the most scandalous transactions between the Guptas and a government entity. The #GuptaLeaks revealed last year how at least R30-million paid to the Guptas via the farm ended up funding the family’s lavish Sun City wedding in 2013.
The report is Mkhwebane’s most politically sensitive to date. In it she recommended that as remedial action, Free State Premier and ANC secretary general Ace Magashule should “initiate and institute disciplinary action against all implicated officials involved in the Vrede dairy project”.
Some of the procurement irregularities highlighted in the report include:
- The payments to Estina were not in line with treasury prescripts.
- The agreement between the Free State’s provincial department of agriculture and Estina, the Gupta-linked company that executed the project, seemed to have been invalid.
- The head of department (HOD) did not follow the normal procurement processes, as prescribed by the Constitution, the Public Finance Management Act (PFMA) and national treasury procurement regulations.
In a statement issued on Monday evening, Mkhwebane said she was concerned about the ruling which she ‘disagrees with fundamentally’, saying that setting aside the report may be interpreted as the court letting people implicated in the report off the hook.
Mkhwebane’s spokesperson Oupa Segalwe said she would be arguing the merits of her case in court, instead of arguing them in the media.
But Segalwe did say 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.
DA leader Mmusi Maimane said in a media statement on Monday that the judgment was a victory in the fight against corruption. He said they were one step closer to justice for the more than 100 intended beneficiaries of the “sham empowerment scheme”. The report, which Maimane described as a ‘mind-boggling whitewash’ in February last year, was met with harsh criticism from his party, which was of the view is that Mkhwebane was not “prudent” in her investigation and that senior politicians implicated in the project were not interviewed.
“When I met with these intended beneficiaries in Vrede almost two years ago, I undertook to fight this matter on all fronts. The DA laid the initial complaint with the Public Protector and, following the release of her report, we held the view that the report was a ‘whitewash’, as it failed to hold to account those responsible for the theft of almost R200m of public money. Today, the Gauteng High Court has vindicated our view, as it held this report to be unconstitutional and invalid.
“Instead of empowering those who are left out of the economy, over 100 black South Africans were used as a front for a calculated scheme of grand corruption and money laundering to benefit the Guptas and their friends in the ANC. Between the Guptas and the ANC, economic opportunity was stolen from black South Africans. This is a crime of the most reprehensible nature, and those responsible must face the full might of the law,” Maimane charged.
In the same press release, Segwale said the DA published and disseminated false and defamatory information claiming that Mkhwebane is on the payroll of the State Security Agency (SSA), is a spook and was appointed to perpetuate the corruption of the office of the public protector 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 levelled against her as false,” Segwale said.