Gag order against public protector put on ice, but not for long
But the lawyer allegedly implicated in Mkhwebane’s corruption probe is still going to try to block her report
An urgent gag order against the public protector has been removed from the roll at the Pretoria High Court, after all parties failed – or were unable – to submit their responses to the initial application.
However, the case is likely to be placed back on the roll next week.
The urgent application was initially set to stop the Office of the Public Protector from releasing its interim findings into a corruption probe against the Financial Sector Conduct Authority, formerly the Financial Services Board (FSB). The regulator has been at the centre of Busisiwe Mkhwebane’s corruption, extortion and mismanagement probe since EFF leader Julius Malema launched a complaint against the board and its boss, Dube Tshidi, in April 2017.
The investigation stems from the alleged relationship between Tshidi and lawyer Anthony Mostert, and his curatorship of a series of pension funds between 2005 and 2011, allegedly with the agreement of the FSB.
As part of the agreements, Mostert and his law firm were able to negotiate large claims on surplus earnings in the funds, alongside remuneration for legal fees. In one fund, the Sable Industries Pension Fund, he reportedly earned about R122m.
In the EFF’s complaint to the protector, Malema writes: “Mr Tshidi himself has acted, and continues to act, in a manner which does not serve the interests of the very people that the FSB has been established to protect, namely the members of pension funds. Furthermore, Mr Tshidi has failed to ensure proper regulation of the financial institutions licensed to operate. We have seen substantial documented evidence indicating that for years he has been responsible for gross misconduct; material abuse of the powers of the FSB; perjury; withholding of information and ongoing efforts to cover up the wrongdoing ... ”
Times Select reported on Monday that Mostert had launched an application at the Pretoria High Court to prevent the release of any of the interim findings of the protector’s report, after a notice was sent out to relevant parties indicating it would do so. He has also indicated he will launch a subsequent application to reverse the protector’s decision to investigate the matter at all.
On Tuesday morning, legal representatives for both the EFF and the protector missed the deadline to submit their responses to the urgent application.
Because of this, Mostert could not file his own response, meaning the case had to be postponed. The court ruled the case would be removed from the roll but that it could be re-enrolled once all the responses were in order. It was indicated that this would be the case.
In his founding affidavit, Mostert said he wished the protector and the EFF to be restrained from publishing or “in any other way disseminating ... the (protector’s) interim findings or any other findings in respect of the complaint lodged with (the protector by the EFF)”.
This would be “pending the final determination of an action or application to be instituted by (Mostert and his co-applicants) ... for an order declaring the (protector) does not have the power to investigate the subject matter of the complaint, reviewing and setting aside the decision of the public protector to investigate the complaint ... ” he wrote.
In his founding affidavit, Mostert claimed the entire investigation is part of a smear campaign against him, and that the EFF’s complaint was submitted based on false information provided to them.
He also indicated that while he had asked for an extension to provide further information to the Office of the Public Protector pending the finalisation of her report, he had not been given enough time to do so. The affidavit also acknowledged that the findings negatively implicated him.
His lawyer, Craig Assheton-Smith, confirmed the claims in his founding documents submitted the court. He has denied any wrongdoing.
“The allegations of corruption through the FSB has no factual basis whatsoever ... Mr Mostert has no personal relationship with Mr Tshidi. Interactions between Mr Mostert and Mr Tshidi have been strictly by virtue of the relationship between the Registrar of the Pension Funds as the Regulator of Pension Funds and those Pension Funds in respect of which Mr Mostert has been appointed as curator/liquidator in terms of orders of court,” wrote Assheton-Smith.
The Office of the Public Protector’s spokesperson, Oupa Segalwe, said last week he would not be able to comment on the urgent application “for legal reasons”.
The EFF’s legal representative, Ian Levitt, explained that he would be fighting the application “100%”.
“We asked the public protector to become involved in the public’s interest,” he said.
“I can confirm that we have received a notice from the public protector informing us of the investigation you are referring to. We have provided all information requested,” said Tembisa Marele, spokesperson for the FSCA.
“It is only once we have received a report from the (protector) on this matter that we can provide comment.”
However, she added that neither the FSCA nor Tshidi would be participating in the application.