Crushing SCA setback for Mkhwebane's Estina appeal
Public Protector Busisiwe Mkhwebane’s efforts to appeal against one of the most damning rulings against her has been dismissed by the SCA, which, according to Business Day legal writer Karyn Maughan, may undermine her attempts to remain in office.
The case involves her widely lambasted investigation into the Gupta-linked Estina dairy project scam.
The appeal court issued an order stating that Mkhwebane’s application had been dismissed with costs ‘on the grounds that there is no reasonable prospect of success … and there is no other compelling reason an appeal should be heard’.
The order means that the 7.5% personal costs order granted against Mkhwebane by Judge Ronel Tolmay in the case stands.
The decision is a devastating professional blow for Mkhwebane, who is attempting to interdict Parliament from pursuing an inquiry into her fitness to hold office until she has challenged the rules by which the inquiry process will be governed.
Mkhwebane’s spokesperson, Oupa Segalwe, reportedly told Business Day that she was ’in the dark’ about the appeal court’s decision.
‘She finds it strange that the SCA would issue a judgment like that without informing her legal team that the matter was to be considered on the basis of the papers filed rather than a hearing. She was still awaiting the date of hearing’.
The SCA’s decision clearly demonstrates ‘the absolute futility of the Public Protector’s appeal’, Lawson Naidoo, from the Council for the Advancement of the SA Constitution – which together with the DA had challenged Mkhwebane’s Estina report in the Gauteng High Court (Pretoria) – is quoted as saying.
According to Business Day, Naidoo said the SCA ruling effectively quashed any hope Mkhwebane may have had of avoiding tough questions about the Estina judgment during the mooted inquiry process against her.
‘One by one, her efforts to appeal the damning rulings given against her are collapsing’.
One of the key pieces of ammunition that will be used against Mkhwebane in the process, which was initiated by the DA’s Natasha Mazzoni, is the damning ruling delivered against Mkhwebane by Tolmay – who found that she had failed the people of SA in the way she handled the Estina investigation.
Tolmay set aside Mkhwebane’s report on the dairy project, declaring it ‘unlawful, unconstitutional and invalid’.
The Estina project was promoted by the Free State Government as a mechanism to empower small-scale dairy farmers through the production and sale of milk. However, of the R220m in taxpayers’ money transferred to Estina – a Gupta-linked company contracted by the Free State’s Agricultural Department to run the project – only 1% was reportedly spent on actual farming.
Instead of uplifting poor black farmers, most of the balance of this money allegedly went to individuals and entities associated with the Guptas. Part of it was reportedly used to fund a lavish Gupta wedding at Sun City.
Mkhwebane had claimed that ‘resource constraints’ prevented her from conducting a full-throttled investigation into the Estina scam – which would have included the subpoenaing and analysis of phone records and bank statements of key officials, including then Free State agriculture MEC Mosebenzi Zwane and then Free State Premier Ace Magashule.
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