Protector 'too scared' to oppose review of 'whitewash' report
Public Protector Busisiwe Mkhwebane says she fears a court may hold her personally liable
Public Protector Busisiwe Mkhwebane says she is too scared to defend her Estina Dairy Project report in court – after being ordered to personally pay part of the legal bill in the South African Reserve Bank case.
The Democratic Alliance and the Council for the Advancement of the South African Constitution are seeking a review of Mkhwebane’s Estina report on the basis that the four-year investigation was a “whitewash” that failed to probe the role of key political figures in the scandal.
Mkhwebane now says she will abide by whatever the High Court rules on this application, but will file an affidavit to “explain” her investigation – which she defended in parliament last week.
Asked why the public protector had chosen not to oppose the review of her report, her spokesperson Oupa Segalwe said the personal costs order granted against Mkhwebane in the SARB CIEX case had “instilled fear in the public protector when it comes to defending her reports in court”.
Her report on the Vrede diary farm has been criticised for ignoring key information‚ in particular evidence that implicated former Mineral Resources minister Mosebenzi Zwane, provincial leader Ace Magashule and members of the Gupta family.Last month, the North Gauteng High Court set aside the remedial action contained in Mkhwebane’s report on the apartheid-era bailout to Bankorp and ordered her to pay 15% of the Reserve Bank’s costs in her personal capacity.
In a damning ruling, Judge Cynthia Pretorius made serious findings about Mkhwebane’s grasp of her position and its responsibilities.
“In the matter before us it transpired that the public protector does not fully understand her constitutional duty to be impartial and to perform her functions without fear‚ favour or prejudice.”The judge said this was a case where “a simple punitive costs order against her in her official capacity will not be appropriate. This is a case where we should go further and order the public protector to pay at least a certain percentage of the costs incurred on a punitive scale.”
Mkhwebane has said she was “shocked” by that judgment.
“Now, in the latest (Estina) case, the DA and Casac are asking the court for personal costs and costs on attorney/client scale against the public protector,” Segalwe said.
“At the same time, the public protector is accused of wasting tax payers’ money when she defends her decisions. In addition, her office is not well resourced (to afford litigation). This year, Treasury cut the public protector South Africa’s budget by R8-million.”Casac’s Lawson Naidoo said Mkhwebane’s claims that she was not defending her Estina report out of fear that she’d be hit with a personal costs order were “a shocking indictment on her inability to defend her report”.
“If she’s confident in her report, a costs order shouldn't bother her,” he said.
The DA’s spokesperson on justice, Glynnis Breytenbach, said it was “patently pathetic to suggest that a personal costs order is instilling fear in the public protector”.
“If she was a competent advocate, as she stated in her interview for the position, she would know when to oppose cases and when not to. She spent R13-million in the CIEX matter, defending the indefensible. She’s clearly not a fit person to be occupying the position of public protector. She s not independent, and she never has been.”