Gugile Nkwinti wins 'academic' court battle to block leaked report

Public protector Busisiwe Mkhwebane has described a judgment by the North Gauteng High Court interdicting her from releasing a report against minister Gugile Nkwinti as "an academic exercise".

Judge Cassim Sardiwally on Thursday granted the interdict sought by Nkwinti to halt the public release of a report that found he had violated the executive ethics code and the constitution.

Nkwinti argued that Mkhwebane did not provide enough time for him to respond to the report.

But Mkhwebane's spokesperson, Oupa Segalwe, said: "We are puzzled by the order. In our view, the applicant didn't even argue or plead for an interim interdict. It is therefore unclear what the basis for the order is." 

He said it was a pity that they are yet to know the reasons for the judgment.

"What puts a spanner in the works is that the report had already been distributed to parties, including the complainant, and that was before the applicant approached the court. It was subsequently published in the media. This renders the judgment rather academic," said Segalwe.

Nkwinti's lawyer, Mxolisi Myambo, said the ruling prepared the ground for them to take the report on judicial review. 

"We are now going to file papers to review the report within the next month," Myambo said. 

Myambo said they were happy that Mkhwebane could not issue the report nor could President Cyril Ramaphosa act on its findings.

Mkhwebane had recommended that Ramaphosa, within 30 days of the publication of the report, take action against Nkwinti "for violating the executive ethics code and the constitution".

The investigation by Mkhwebane's office confirmed a Sunday Times report in 2017 that Nkwinti had introduced a former ANC staff member from Luthuli House, Errol Velile Present, to officials in his department.

Eight months later, the department bought a R97m farm in Limpopo and handed it to Present and his business partners.

Present was fired by the ANC in 2018 after he was arrested for alleged involvement in cash-in-transit heists. His trial is still under way.

Mkhwebane found this to be an abuse of position by Nkwinti and that he had unduly influenced his department to purchase the Bekendvlei farm in 2011.

On Monday, Nkwinti's counsel, advocate Ernst van Graan SC, argued that the public protector gave the minister only 18 days to respond to an investigation that took her more than two years to complete. 

"The public protector did nothing, absolutely nothing, for two years and two months," he argued.

Counsel for Mkhwebane, advocate Bright Shabalala, rejected Nkwinti's argument, saying it "limps on all fronts". 

Shabalala said Nkwinti's attitude, conveyed through his counsel, undermined the public protector. 

"They are forgetting that the powers of the public protector are constitutionally sourced," he said. 

Segalwe said they found it strange that the judge did not award costs to the successful party. 

"We will study the judgment and its implications, and map the way forward," he said.