Legal first as judge blocks Mkhwebane report
It what is a legal first – previous efforts to interdict the release of Public Protector reports have failed – Judge Cassim Sardiwalla, of the Gauteng High Court (Pretoria), yesterday issued an urgent order preventing the public release of a report that found Minister Gugile Nkwinti had violated the Executive Ethics Code and the Constitution.
The interdict prevents President Cyril Ramaphosa acting on the remedial action ordered by Public Protector Busisiwe Mkhwebane, pending a challenge by the Minister to the rationality and legality of her findings against him, notes a Business Day report.
Mkhwebane's spokesperson described the judgment as 'an academic exercise', says TimesLIVE. Nkwinti argued that Mkhwebane did not provide enough time for him to respond to the report. But spokesperson Oupa Segalwe, said: ' ... the applicant didn't even argue or plead for an interim interdict. It is therefore unclear what the basis for the order is.' He added: ' ... 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.'
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. Mkhwebane had recommended that Ramaphosa, within 30 days of the publication of the report, take action against Nkwinti.
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, notes the TimesLIVE report, 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.
The ruling, and its implication, is the latest controversy to embroil the Public Protector, who has found herself facing accusations that she is biased or does not understand her job, says a second Business Day report. Her previous and ongoing legal woes include an order to change the Reserve Bank’s mandate, which was successfully challenged.
Bank Governor Lesetja Kganyago called her ruling a ‘flagrant disregard of the law’.
In contrast, her predecessor, Thuli Madonsela, defeated two separate bids by Zuma to interdict the release of her reports.
The first was on upgrades to his Nkandla homestead, in which she found against him and ordered a return of state money spent on non-security upgrades, and the State of Capture report, which eventually led to the formation of the Zondo Commission of Inquiry. Nkwinti’s success in temporarily halting the release may be part of a worrying trend, suggests the report.
It notes the ruling comes as Mkhwebane is embroiled in increasingly ugly stand-offs with State Security Minister Dipuo Lesatsi-Duba and Public Enterprises Minister Pravin Gordhan over the so-called rogue unit at SARS, despite the allegations having been discredited and dismissed by the Nugent Commission of Inquiry into SARS.
Mkhwebane and Lesatsi-Duba have laid criminal charges against each other over that investigation. The Constitutional Court is still to rule on a bank application that Mkhwebane be found to have abused her office in her June 2017 report on an apartheid-era bail-out given to Bankorp, which was later taken over by Absa. In that report Mkhwebane ordered that the constitutional mandate of the Reserve Bank be changed, sparking a fall in the rand. She now admits she was wrong to order such changes, but maintains she was not abusing her office in doing so.
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