For Immediate Release: 20 May 2019
On 20 May 2019, the application, filed by the Legal Resources Centre on behalf of the Council for the Advancement of the South African Constitution (“CASAC”) 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 – was successful.
CASAC’s application was brought in its own and in the public’s interest.
Judge Ronel Tolmay of the Pretoria High Court on Monday declared that in investigating and reporting on the Vrede Dairy Project for purposes of her report No 31 of 2017/18, dated 8 February 2018, the Public Protector failed in her duties under section 6 & 7 of the Public Protector Act and section 182 of the Constitution. The Public Protector’s report No 31 of 2017/18 dated 8 February 2018 was accordingly reviewed, set aside and declared unlawful, unconstitutional and invalid.
CASAC also sought an order that punitive costs be imposed on the Public Protector in her personal capacity but the court only delivered judgment on the merits of the application and the costs order with respect to personal costs being awarded against the Public Protector, was postponed sine die.
One hundred black emerging farmers were promised five cows each as part of the empowerment scheme, but never received them. Between 2013 and 2016, a Member representing the Democratic Alliance in the Free State provincial legislature, Dr Roy Jankielsohn lodged a series of complaints with the Public Protector concerning the Project.
In 2017, hundreds of thousands of emails revealed the Gupta family’s seemingly corrupt business dealings with the state and politicians (“the #GuptaLeaks”). These emails corroborated the earlier 2013 reports that the Project was marred by corruption and illustrated how the Gupta family exercised control over the Vrede Dairy Farm contract to pilfer millions of taxpayer Rands from the public purse and how senior provincial officials – including HOD Peter Thabethe, MEC Mosebenzi Zwane and Premier Ace Magashule – may have been complicit.
On assuming office in October 2016, Mkhwebane inherited a provisional report prepared by her predecessor, Thuli Madonsela. In 2018, Mkhwebane quietly released her version of the report, highlighting procurement irregularities, “gross negligence” and maladministration related to the controversial project.
As remedial action, she recommended that Magashule “initiate and institute disciplinary action against all implicated officials involved in the Vrede dairy project”.
However, the DA felt that Mkhwebane was not “prudent” in her investigation and that senior politicians implicated in the project were not interviewed. It was argued that when she assumed office, Mkhwebane was required to conduct a preliminary investigation into the merits of Jankielsohn’s complaint or refer the matter to another appropriate investigative authority. She did not do so. Instead, she purported to ignore the third complaint as a mere inconvenience.
The LRC on behalf of CASAC argued that the report did not include findings relating to the “high-level politicians that played a central role in the project”; that the Constitutional Court has found that the purpose of the Public Protector’s office is to “ensure that there is an effective public service which maintains a high standard of professional ethics” and further that the Public Protector is conferred the powers to investigate grievances of members of the public into any conduct of state affairs; to report on such conduct; and to take appropriate remedial action so as to strengthen constitutional democracy in the Republic.
Her mandate is thus to protect the public from any conduct in public affairs or government that could result in impropriety, prejudice, unlawful enrichment or corruption, to report on her investigations and to take appropriate remedial action. Her constitutional power – and, we submit, her duty – is to investigate when such impropriety or prejudice is “alleged” or “suspected”.
In fulfilling these functions, the Public Protector plays an important role in establishing and maintaining an “efficient, equitable and ethical public administration which respects fundamental rights and is accountable to the broader public.”
Our courts have held that she is not a “passive adjudicator” between citizens and the State. She has an investigative mandate “requiring pro-action in appropriate circumstances”. And her investigative powers are “of the widest ambit”.
Although the Public Protector’s functions are cast as powers, they are what the Constitutional Court has described in other contexts as “a power coupled with a duty to use it if the requisite circumstances were present.”
In this litigation specifically, the Public Protector was less than candid with the Court. As CASAC argued, she was also less than candid with the Portfolio Committee to which she is directly accountable. She at no stage informed the Committee that she had altered the findings and remedial action in Madonsela’s Provisional Report and she also failed to inform the Portfolio Committee of the true nature of the findings against Magashule, which arose from the National Treasury Report. She was given multiple opportunities to explain the alterations to the Provisional Report, and she failed to provide an adequate explanation.
The Pretoria High Court has made it clear that the Public Protector failed to properly investigate the complaints lodged which “was plainly irrational in that it was not rationally related to the purpose of the Public Protector or her specific powers to investigate and report, it was also not rationally related to the information before her, which provided at least prima facie evidence of corrupt activity.”
The judgment confirms that CASAC had demonstrated that Mkhwebane acted in bad faith and for an improper purpose and sought to protect high-ranking officials and the Gupta family with a watered-down Report. The judgment also further confirms 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.
For Media Related Queries Please Contact:
Sharita Samuel Legal Resources Centre (KZN Regional Director) firstname.lastname@example.org / 074 111 2170
Lawson Naidoo CASAC (National Director) email@example.com / 073 158 5736
Tad Khosa Legal Resources Centre (National Communications) firstname.lastname@example.org / 0813460180