Media Release: High Court Finds Public Protector and her Office Liable for Costs in the Vrede Dairy Project Report Review Application
Published by Legal Resources Centre 15 August 2019
For Immediate Release: 15 August 2019
Judge Ronel Tolmay of the Pretoria High Court on Thursday, 15 August 2019 ruled in favour of the Legal Resource Centre’s clients (the Council for the Advancement of the South African Constitution – “CASAC”) in their application seeking a punitive costs order against the public protector in relation to the Estina Dairy report.Judge Tolmay found that the failures and dereliction of duty by the public protector in the Estina Dairy Farm matter were manifold and constituted a failure to execute her duties in terms of the Constitution and the public protector Act.
Judge Tolmay found that the public protector’s failures in this matter were far worse and lamentable than that set out in the Reserve Bank matter. Judge Tolmay pointed out that at least in the Reserve Bank matter, the institutions had the resources to fend for themselves whilst the Estina Dairy Project report impacted on the rights of the poor and vulnerable – the very people for whom the office of the Public Protector was essentially created.
The judgment confirms that the Legal Resources Centre (LRC), on behalf of CASAC, demonstrated that Mkhwebane acted in bad faith and for an improper purpose and sought to protect high-ranking officials with a watered-down report. The judgment emphasises that the public protector must act independently and impartially in fulfilling her duties and that in instances where she fails to do so, she will be held accountable.
The judgment further records that the intended beneficiaries were disenfranchised by the very people who had undertaken to uplift them and yet the public protector turned a blind eye; did not consult with them and did not investigate the irregularities that allegedly occurred – properly and objectively. The court found the public protector’s conduct during the entire investigation constituted gross negligence; failed to execute her constitutional duties and that her inability to comprehend and accept the inappropriateness of her proposed remedial action constituted ineptitude.
The court was satisfied that the requirements for a personal and punitive costs order were met and that the public protector should be personally liable for at least a percentage of the costs incurred. The court ordered that the office of the public protector was liable to pay the majority of CASAC’S costs on an attorney and client scale, which costs included the costs of two counsel, and a portion in her personal capacity on an attorney and client scale which costs included the costs of two counsel.
This judgment regarding the costs order stems from the 20 May 2019 judgment regarding the application filed by the LRC on behalf of CASAC, in its own and in the public’s interest, in the Pretoria High Court – seeking a declaratory order that, in investigating and reporting on the Vrede Dairy Project, the Public Protector failed in her duties. This was successful and the public protector’s report No 31 of 2017/18 dated 8 February 2018 was set aside and declared unlawful, unconstitutional and invalid.
The LRC and CASAC had also sought an order that punitive costs be imposed on the public protector in her personal capacity and this judgment on costs was reserved pending the Constitutional Court’s judgment in The Public Protector v South African Reserve Bank matter which dealt with costs orders against the public protector in her official and personal capacity.
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Lawson Naidoo CASAC (National Director) firstname.lastname@example.org
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