For the second time this year, Public Protector Busisiwe Mkhwebane is being made to pay personally for having delivered a report tarnished by “gross negligence”.

In May 2019, the public protector’s report on the Estina dairy farm was set aside by the North Gauteng High Court, with Judge Ronel Tolmay ruling that the report was unconstitutional and invalid.

At the time of the judgment, however, the judgment on costs was suspended until the Constitutional Court had handed down a ruling on the public protector’s appeal against the personal costs awarded against her in the setting aside of her Reserve Bank report.

The country’s highest court ruled in July that Mkhwebane should pay 15% of the litigation costs associated with the Reserve Bank matter – and now the North Gauteng High Court has followed suit.

Judge Ronel Tolmay ruled on Thursday, 15 August that Mkhwebane should pay 7,5% of the legal costs of each of the two applicants in the Estina dairy case.

In a scathing ruling, Judge Tolmay found that “the failures and dereliction of duty by the public protector in the Estina matter are manifold”.

The Estina report, released in February 2018, was widely slammed as a whitewash after it failed to examine the role of the Gupta family in the controversial Vrede dairy project, or to investigate the role played by Free State provincial leaders Ace Magashule and Mosebenzi Zwane in setting up the farm.

“In my view [Mkhwebane’s] conduct in this matter is far worse, and more lamentable, than that set out in the Reserve Bank matter,” Judge Tolmay wrote.

“At least there her failures impacted on institutions that have the resources to fend for themselves. In this instance her dereliction of her duty impacted on the rights of the poor and vulnerable in society, the very people for whom her office was essentially created.”

Judge Tolmay continued: “They were deprived of their one chance to create a better life for themselves. The intended beneficiaries of the Estina project were disenfranchised by the very people who were supposed to uplift them. Yet the public protector turned a blind eye, did not consult with them and did not investigate the numerous irregularities that allegedly occurred properly and objectively.”

Although the public protector had argued that the flaws in her report were due to a lack of resources, her office proceeded to appoint two separate sets of lawyers to deal with the report’s review application. This was unnecessary, as although there were two applicants in the matter, one set of lawyers could have dealt with both.

“These appointments must have caused an enormous escalation of legal costs for her office,” Judge Tolmay noted, describing the decision as demonstrating “total disregard for the taxpayers who will have to foot the bill”.

In ordering a personal and punitive costs order, however, the judge took into account that there were two sets of lawyers’ bills to pay as a result of the two applicants.

“The impact on [Mkhwebane] personally may be too harsh,” wrote Judge Tolmay, “and therefore the court adjusted the personal costs to a lower percentage for each applicant”.

The two applicants – the DA and the Council for the Advancement of the South African Constitution (Casac) – have expressed satisfaction with the ruling.

“We obviously welcome this judgment,” Casac’s Lawson Naidoo toldDaily Maverick.

“It’s quite clear that following on from the Reserve Bank judgment, the law regarding personal costs order has been clarified; [the judge] quoted extensively from the ConCourt judgment.”

Naidoo said that there appeared to be scant available grounds on which the costs order could be appealed.

Public protector spokesperson Oupa Segalwe has since confirmed that Mkhwebane intends to appeal the judgment, however, describing her as “disappointed” with Judge Tolmay’s ruling.

The DA’s chief whip John Steenhuisen said in a statement that the ruling “makes it clear that Parliament can no longer delay the removal proceedings against [the public protector]”.

Steenhuisen described the ruling as an “indictment on Busisiwe Mkhwebane’s competence”, adding: “There is no more denying – the public protector is wholly unfit and improper to hold the office of such a crucial Chapter 9 body”. DM

Sidebar: Critical witness on Vrede Dairy Project at the Zondo Commission