Guest Column

Want to understand Ace, Mr President? Read the Vrede dairy judgment

2019-05-21 12:16
Public protector Busisiwe Mkhwebane at a media briefing in Pretoria. (Lerato Sejake/News24)

Public protector Busisiwe Mkhwebane at a media briefing in Pretoria. (Lerato Sejake/News24)

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The truth regarding the Vrede dairy project cannot ignore the role of senior politicians in the Free State who were, for selfish and corrupt reasons, willing to sacrifice the aspirations of 80 impoverished beneficiaries, writes Roy Jankielsohn.

If President Cyril Ramaphosa required any reason to mistrust his own party's secretary general, Ace Magashule, and the Zuma-era appointed Public Protector Busisiwe Mkhwebane, he needs go no further than read Judge Ronel Tolmay's judgment of the Public Protector's Vrede dairy report. The judgment clearly exposes the lengths to which Zuma acolytes will go to prevent the truth regarding the extent of state capture from being revealed.

The dairy farm project involving Gupta-linked company Estina was meant to provide economic opportunities for local emerging farmers. An agreement between the provincial government and Estina indicated that the R570m-project would be funded by the provincial government to the tune of R342m, while Estina would contribute R228m. However, Estina was allowed to abscond from the project without contributing any of its own funding without penalties. To date the provincial government has spent more than R346m on the project with no beneficiaries. Without beneficiaries such a project has no reason to exist, except if it is for the laundering of state funds.

The investigation and final report of the Public Protector into the Vrede dairy project, which was the basis for the judicial review, was initiated by requests for investigation by the DA between 2013 and 2016. The complaints referred to illegal procurement processes, Estina's misrepresentations as being part of Indian dairy company Paras, Estina being both a partner and implementing agent in the project, Estina being allowed to abscond from the project without any accountability, the beneficiaries of the project being side-lined, serious financial irregularities revealed in a Treasury report, and the continued payments by the provincial government to the project.

The initial report by the Public Protector was clearly inadequate since it did not include material aspects of the DA's initial complaints. The most important failures of the report that prompted the judicial review by both the DA and Council for the Advancement of the South African Constitution (Casac) relate to the following:

- the absolvement of politicians involved in the project from any responsibility or accountability;

- recommending that former Free State premier Ace Magashule and the head of the department of agriculture, Peter Thabethe, implement remedial action while they are clearly implicated in the alleged corruption;

- ignoring important evidence and narrowed the scope of the investigation;

- side-lining the intended beneficiaries of the project; and

- deliberately ignoring the findings and proposed remedial action of the preliminary report by her predecessor Thuli Madonsela without any justification.

In her judgment, Tolmay, quoting a case between the DA and the Speaker of the National Assembly and Others, indicated that the Public Protector is "one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance". The judgment indicated that the Public Protector contravened the Public Protector Act and the Constitution, the very instruments that should have been used to investigate, expose and remediate the bureaucratic and political malfeasance in the Vrede dairy project. It is for this reason that Tolmay's declaration that the Public Protector report regarding the Vrede dairy project be "set aside and declared unlawful, unconstitutional and invalid".

The political involvement in the project is clear when the following is taken into account:

- the agreement between Estina and the Free State provincial government was initiated, crafted and signed in the Office of the Premier under false pretexts;

- the Free State provincial government under Magashule, the provincial treasury under MEC for finance Elsabe Rockman and the department of agriculture and rural development under former MEC Mamiki Qabathe continued to appropriate funds to this project in spite of a National Treasury report that exposed financial maladministration and the withdrawal of funding by the national department of agriculture for this same reason;

- the premier and the MECs ignored the National Treasury report recommendation that indicated that disciplinary action should be taken against the former head of the provincial department of agriculture;

- former MEC for agriculture Mosebenzi Zwane was an architect of this project and allegedly attempted to cover up the alleged allocation of R30m from the project to the Gupta wedding at Sun City and the illegal landing of an aircraft at Waterkloof Air Force Base bringing guests to the same wedding;

- the beneficiaries were never included in this project which eliminated its reason to exist as a legitimate agricultural project.

The Public Protector cited a lack of resources to carry out the necessary investigations as reasons why the investigation was not able to address all the issues. In her judgment, Tolmay indicates that the Public Protector has the powers to call for assistance from organs of state or refer matters to other appropriate authorities to ensure that complaints are properly and effectively addressed. Citing a previous ruling of the court she states that "The Public Protector must not only discover the truth but must also inspire confidence that the truth has been discovered".

The truth regarding the Vrede dairy project cannot ignore the crucial role of various senior politicians in the Free State province who were, for selfish and corrupt reasons, willing to sacrifice the aspirations of 80 impoverished beneficiaries whose hopes for a better future were carelessly shattered.    

The ruling implies that the Public Protector will have to go back to the drawing board and ensure that the aspects that were neglected and deliberately ignored receive attention with the necessary diligence. Among others, a recommendation that law enforcement agencies expand their investigations to include various political role-players would benefit a society in which corruption appears to have become endemic.

Parliament will have to take note of the judgment that clearly indicates that the invaluable constitutional gift to our nation in discovering the truth regarding corruption and abuse of power, namely the Office of the Public Protector, has failed to do so regarding the Vrede dairy project and its beneficiaries. This will be a litmus test for Parliament's resolve to protect our Constitution, and specifically the integrity of institutions that are established to support our constitutional democracy.

The Vrede dairy project is but one of many projects in the Free State that require investigation, exposure and justice. The province has been captured by various private companies and individuals who have conspired with bureaucrats and politicians to control and abuse the public purse. The Vrede dairy project has, however, captured the imagination of the public through its links to the most infamous family implicated in state capture in the country, namely the Guptas

- Dr Roy Jankielsohn is the DA caucus leader in the Free State legislature.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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