That's three: Mkhwebane suffers yet another defeat in matters of national interest

2020-03-10 18:46

Public Protector Busisiwe Mkhwebane suffered her third major court defeat on Tuesday after the North Gauteng High Court in Pretoria set aside her report into the CR17 campaign.

The court was scathing in its judgment of her conduct.

This is the third report of major national interest the Public Protector has had set aside by the courts and, in what is emerging as a trend with major investigations she has undertaken, the court again struck hammer blows to Mkhwebane's credibility as an investigator.

Her office said in the wake of the ruling that many were simply ignoring the large number of complaints it had finalised while focusing only on the negative findings.

It is worth noting, however, that many of the cases handled by the Office of the Public Protector do not require major investigations.

The high-profile reports she issues, which are of national interest, will undoubtedly enjoy the most attention as they are potentially consequential to the entire country.

Here is what the court said about Mkhwebane in previous battles over her reports:

CR17

"In dealing with this issue, the Public Protector failed to properly analyse and understand the facts and evidence at her disposal … she displayed a complete lack of basic knowledge of the law and its application," said a full Bench comprising Judge President Dunstan Mlambo as well as judges Raylene Keightley and Elias Matojane on 10 March 2020.

Mkhwebane's entire report and remedial actions relating to Cyril Ramaphosa's CR17 campaign were set aside by the court on Tuesday.

The court also branded several decisions and statements made by her as reckless.

Estina

Setting aside the Public Protector's report into the Estina dairy case on 20 May 2019, Judge Ronel Tolmay said: "When the Public Protector fails to discharge her mandate and duties, the strength of South Africa's constitutional democracy is inevitably compromised and the public is left without the assistance of their constitutionally created guardian. It means that a vital constitutional check against abuse of power is lost." 

Mkhwebane completely left out the role of political players in her report on the Estina dairy farm debacle, sparking a court challenge. Ace Magashule and Mosebenzi Zwane, who are allegedly Gupta-linked politicians seen to be aligned to the Zuma faction in the ANC, were essentially absolved.

In this case, Gupta-linked frontmen siphoned millions out of the Free State to the family's coffers in Dubai, using public money to pay for an ostentatious wedding at Sun City.

Absa/Bankorp case

This investigation dealt with the apartheid-era bailout by the South African Reserve Bank of Bankorp which was later purchased by Absa.

"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," Judge Cynthia Pretorius found on 16 February 2018.

Mkhwebane was even ordered to pay costs in her personal capacity in this case.

She is also facing a charge of perjury for allegedly lying in various affidavits to the courts during litigation over her report.

Parliament has also undertaken a process aimed at removing Mkhwebane from office following an investigation by MPs.

Mkhwebane is challenging the legality of the parliamentary process in the Western Cape High Court.

Read more on:    busisiwe mkhwebane  |  court  |  public protector
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