30 June 2020
The LRC welcomes Supreme Court of Appeal’s dismissal of Public Protector’s
application for leave to appeal in Vrede Dairy Project matter
Yesterday, the Supreme Court of Appeal dismissed the Public Protector’s application for leave to appeal the 2019 Pretoria High Court ruling which reviewed and set aside her report on the Vrede Dairy Project. The SCA dismissed this application for leave to appeal 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 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. CASAC argued that despite compelling evidence of widely and publicly available evidence of complicity of senior public officials in de-railing the Vrede Dairy Project, the report published by the Public Protector was a watered-down version of the truth which 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 favour of CASAC. The initial judgment handed down (the “merits judgment”) found in favour of CASAC. The second judgment (the “costs judgement”) 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 judgement 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 the 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 2019, this application for leave to appeal was dismissed.
6 February 2020, the Public Protector then filed a direct application for leave to
appeal all three court orders of the Pretoria High Court to the Supreme Court of Appeal. CASAC opposed the Public Protector’s application to the Supreme Court of Appeal and submitted that the appeal had no prospects of success.
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 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 “higher-ups”. 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 fulfilments of its mandate clearly and unequivocally to deter what amounted to the elite capture of a significant land redistribution effort and project.
Issued by the Legal Resources Centre
Tel: 068 584 2442 / Email: email@example.com