28 August 2020 – Media Statement: The Legal Resources Centre and CASAC welcome Constitutional Court dismissal of Public Protector’s appeal

Media Statement

28 August 2020

The Legal Resources Centre and CASAC welcome Constitutional Court dismissal of Public Protector’s appeal

This morning, the Constitutional Court handed down an order which dismissed the public protector’s appeal with costs on the grounds that it had no reasonable prospects of success.

In 2018, the Council for the Advancement of the South African Constitution (CASAC) represented by the Legal Resources Centre (LRC) challenged the public protector’s investigation and reporting on the Vrede Dairy Project. CASAC sought to review and set aside the public protector’s report on the grounds that she acted unlawfully and in
violation of her constitutional mandate in producing a report that was startlingly superficial and limited. Advocates Michelle le Roux and Michael Mbikiwa appeared in all three applications and argued that despite compelling evidence of widely and publicly available evidence of the complicity of senior public officials in derailing the
Vrede Dairy Project, the report published by the public protector was a watered-down version of the truth that appeared to protect higher-ranking public servants. Furthermore, the public protector had removed findings and remedial actions that were included in the draft provisional report prepared by her predecessor, Advocate
Thuli Madonsela.

Last year a three-part judgment was handed down in the Pretoria High Court which found in favor of CASAC. The initial judgment handed down (the “merits judgment”) found in favor of CASAC and held that the public protector’s report was unconstitutional and invalid for the following reasons:

1.1 The public protector failed to properly investigate the initial complaints made, in that she failed to use her statutory powers and adopt the stance of a proactive investigator, acted irrationally, ignored relevant considerations, and misapplied the law;
1.2 Failed to have regard to the complaint of 10 May 2016 or to have regard to the information in the public domain of the evidence implicating high-ranking officials and the Gupta family in corruption – thereby acted unlawfully and irrationally;
1.3 Imposed remedial action recommending implicated senior public servants manage disciplinary proceedings and procurement training in respect of those found to have breached their mandates arising from the Vrede Dairy Project and which violated section 6(4) of Public Protector Act and section 182(1)(c) of the Constitution and was irrational, in that it failed to devise a remedy that was appropriate, fitting, suitable or effective;
1.4 Committed a mistake of law by believing that she was not empowered to take remedial action referring the matter to another organ of state for further investigation.

The second judgment (the “costs judgment”) held that as a matter of law, personal costs orders can be granted against public officials such as the public protector, where a gross disregard of their professional responsibilities has been proved. The costs judgment found the public protector’s conduct to have warranted a punitive cost order against her in her personal capacity. The public protector was ordered to pay 7.5% of the costs in the matter whilst the office of the public protector was ordered to pay 85% of the costs. This order on the costs amounted to a computation error.

The third judgment corrected the computation error in the costs judgment and varied the costs order. The punitive costs order against the public protector remained at 7.5% and 85% was varied to direct the office of the public protector to pay 92.5% of the costs.

The public protector thereafter applied in the Pretoria High Court for leave to appeal to the Supreme Court of Appeal. On 13 December 2020, this application for leave to appeal was dismissed.

Thereafter on 6 February 2020, the public protector filed a direct application for leave to appeal all three court orders of the Pretoria High Court to the Supreme Court of Appeal. This application was opposed by CASAC who submitted that the appeal had no prospects of success. On 21 June 2020, the appeal to the SCA was dismissed.

Following the SCA’s dismissal of her leave to appeal on 17 July 2020 the public protector then filed a direct application for leave to appeal all three court orders of the Pretoria High Court to the Constitutional Court.

CASAC assisted by the Legal Resources Centre for the third time, opposed the Public Protector’s leave to appeal application, citing that the grounds upon which the Public Protector’s appeal rests bears no reasonable prospects of success and furthermore, that it is not in the interest of justice for the Constitutional Court to hear this matter.

This case supports the principle of openness and accountability in respect of state institutions that exist to interrogate and hold accountable the public servants tasked with protecting the interests of the vulnerable and promoting genuine land reform projects in our country. The Vrede Dairy Project was intended to benefit vulnerable
citizens including women, the unemployed, pensioners, and elderly persons – largely citizens subject to adverse socio-economic circumstances. This case demonstrated how such groups in our country may be used as a front by the “political elite”. The office of the public protector was created to strengthen constitutional democracy in the republic and is empowered to investigate inter alia corruption – the Vrede Dairy Project highlights the great need for the office of the public protector to demonstrate the fulfilment of its mandate clearly and unequivocally to deter what amounted to the elite capture of a significant land redistribution effort and project.

For more information, please contact:
Lawson Naidoo (CASAC) Cell: 073 158 5736 / lawson@casac.org.za
Sharita Samuel (LRC) Cell: 074 111 2170 / sharita@lrc.org.za