Mkhwebane in bid to appeal Nkwinti order

Appealing: Public protector Busisiwe Mkhwebane wants former land minister Gugile Nkwinti to face the music for violating the executive ethics code and the Constitution. (Oupa Nkosi/M&G)

Appealing: Public protector Busisiwe Mkhwebane wants former land minister Gugile Nkwinti to face the music for violating the executive ethics code and the Constitution. (Oupa Nkosi/M&G)

Public protector Busisiwe Mkhwebane is seeking to appeal another interim interdict, this one granted to Water and Sanitation Minister Gugile Nkwinti in May.

Mkhwebane announced late last month that she would be appealing the interim interdict that suspended the remedial action in her report into a “rogue unit” at the South African Revenue Service (Sars).

With the focus largely on the back-and-forth over reports implicating Public Enterprises Minister Pravin Gordhan and President Cyril Ramaphosa, the Nkwinti appeal has largely flown under the radar.

Usually, interim court orders are not appealable but the Constitutional Court has said it may grant leave to appeal an interim order if it is in the interests of justice. Applications to appeal interim orders can also succeed if the applicant shows that the interim order is, in fact, final in effect.

In this case, the public protector has applied for leave to appeal to a full bench of the high court (comprising three judges) or to the Supreme Court of Appeal, arguing that “in reality” the case will take so long to be finally determined that it is — in effect — a final court order.

The report found that, when he was land minister, Nkwinti abused his position 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 Nkwinti and Present were “acquaintances”, the report said that the minister had violated the executive ethics code and the Constitution. However, Mkhwebane cleared the minister of having taken a R2-million bribe — an allegation that had been circulated and was included in her investigation — saying there was no evidence to support this claim.

She directed the president to take action against Nkwinti.

The minister went to court on the eve of the public announcement of the report to interdict its release. Yet, by the time he obtained his interdict from Pretoria high court judge Cassim Sardiwalla, the report had been sent to the presidency and the complainant and had already found its way into the public domain.

In her application for leave to appeal, the public protector said the horse had already bolted. “The learned judge erred in granting an order which had no legal effect,” said Mkhwebane’s application for leave to appeal.

The application added that the order was preventing her from fulfilling her mandate in terms of her constitutional and statutory powers. “To say this amounts to an intrusion by courts on the domain reserved exclusively for the public protector will not be an overstatement.”

The reality was that the public protector “will have to wait for many years while the review order is slowly meandering its way up the appellate ladder of our court system,” said Mkhwebane’s court papers.

Nkwinti’s attorney, Mxolisi Myambo, said the interdict was not meaningless, saying that the release of the report has “legal implications. If the public protector is interdicted from formally releasing the report, then it follows that the remedial action is suspended. All of this is a sequence of legal events as described in the Public Protector Act.”

Myambo added that the public protector’s constitutional powers and functions were subject to the rule of law. “If any affected individual is aggrieved by the exercise of such powers and functions, courts must adjudicate,” he said. “That process cannot be labelled as a delay that impedes the public protector’s work. A public protector must never be irritated by legal processes in a constitutional democracy.”

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