Vrede dairy farm project: Gauteng High Court rules Public Protector's report is unconstitutional

The Gauteng High Court in Pretoria has ruled that Public Protector Busisiwe Mkhwebane failed in her duties to investigate and report on the Vrede dairy project in the Free State. 

Judge Ronel Tolmay on Monday ruled that Mkhwebane's report was unconstitutional and invalid and set it aside. 

She reserved judgment on costs. 

The Democratic Alliance and Council for the Advancement of the South African Constitution (Casac) applied last year to have Mkhwebane's report on the project declared unconstitutional, and to have it reviewed and set aside.

One hundred black emerging farmers were promised five cows each as part of the empowerment scheme, but never received them.

Gifted to Estina in 2013 under a free 99-year lease by the provincial agriculture department, the farm has been one of the most scandalous transactions between the Guptas and a government entity. The #GuptaLeaks revealed last year how at least R30m paid to the Guptas via the farm ended up funding the family's lavish Sun City wedding in 2013.

READ: #GuptaLeaks: The Dubai Laundromat – How millions milked from Free State government paid for Sun City wedding

In the application, the DA's advocate Janice Bleazard, argued that Mkhwebane failed to investigate a complaint lodged by the party's Roy Jankielsohn. 

Between 2013 and 2016, Jankielsohn submitted three complaints to the Public Protector in respect of the project, calling on the role of the provincial government and then Free State premier Ace Magashule to be probed.

However, when Mkhwebane assumed office in October 2016, she inherited a provisional report prepared by her predecessor, Thuli Madonsela. In 2018, Mkhwebane quietly released the report, highlighting procurement irregularities, "gross negligence" and maladministration related to the controversial project.

As remedial action, she recommended that Magashule "initiate and institute disciplinary action against all implicated officials involved in the Vrede dairy project".

However, the DA felt that Mkhwebane was not "prudent" in her investigation and that senior politicians implicated in the project were not interviewed.

The DA argued that when she assumed office, Mkhwebane was required to conduct a preliminary investigation into the merits of Jankielsohn's complaint or refer the matter to another appropriate investigative authority.

"She did not do so. Instead, she purported to ignore the third complaint as a mere inconvenience.

Casac argued that the report did not include findings relating to the "high-level politicians that played a central role in the project".

The Public Protector's spokesperson Oupa Segalwe told News24 they they will have to study the judgment before responding.

Casac's Lawson Naidoo also said he would need to look at the judgment before giving a response. This will be added once received. 

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