Top court delivers yet another blow to Mkhwebane over Vrede dairy report

28 August 2020 - 17:43 By ERNEST MABUZA
Public protector Busisiwe Mkhwebane has run out of appeals.
Public protector Busisiwe Mkhwebane has run out of appeals.
Image: Picture: RUVAN BOSHOFF

The Constitutional Court has dismissed, with costs, public protector Busisiwe Mkhwebane’s application for leave to appeal against a judgment relating to her report on the Vrede dairy project.

The report was initially set aside by the high court in Pretoria in May last year.

The parties which applied for the report to be set aside — the DA and the Council for the Advancement of the SA Constitution (Casac) — argued that the report was a watered-down version of the truth which appeared to protect higher-ranking public servants.

In its judgment, the high court said the public protector had failed to properly investigate the initial complaints made, acted irrationally, ignored relevant considerations and misapplied the law. It found the public protector imposed remedial action recommending implicated senior public servants to manage disciplinary proceedings for others who had breached their mandates in the project.

Another judgment in the same matter later that year ordered Mkhwebane to pay 7.5% of the costs in her personal capacity, with the office of the public protector paying the remaining 92.5%.

The high court refused the public protector's application for leave to appeal in December last year. The public protector then petitioned the Supreme Court of Appeal, which in June dismissed her application, stating that there was no reasonable prospect of success in an appeal and there was no other compelling reason an appeal should be heard.

Mkhwebane then approached the highest court in the land to appeal against the judgment on the merits and costs.

In its order on Friday morning, the Constitutional Court said it concluded that the application by the public protector should be dismissed as “it bears no reasonable prospects of appeal”.

In its reaction, the DA said the public protector had now exhausted all avenues to delay holding senior politicians involved in the controversial Gupta-linked project to account, and was now required to finalise the report.

“The DA now encourages the PP to finalise the Vrede Dairy Project report, with the same vigour and haste that was shown to seek legal recourse. It is time for the PP to demonstrate critical thinking and restore faith in the state institution,” said Roy Jankielsohn, DA leader of the official opposition in the Free State legislature.

Casac said this case supported the principle of accountability in respect of state institutions that exist to interrogate and hold accountable the public servants tasked with protecting the interests of the vulnerable.